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HomeMy WebLinkAboutC05-300 James Duncan and Associates Cbs - 3CO- so AGREEMENT FOR PROFESSIONAL SERVICES RELATING TO THE UPDATE OF ROAD IMP ACT FEES This ~~~t for Professional Services Relating to the Update of Road Impact Fees for dated as of 7 6 ; ':/1 11- , 2005, is between Eagle County, a body corporate and politic, by and through its Board of County Commissioners ("County"), and James Duncan and Associates, Inc., a professional corporation doing business as Duncan Associates located in Austin, Texas ("Consultant"). RECITALS WHEREAS, the purpose/intent ofthis Agreement is to provide professional services relating to the update of the County's Road Impact Fees; and WHEREAS, the Consultant has submitted to County a Proposal for performing the work (further defined in Section 1) and represented that it has the expertise and personnel necessary to properly and timely perform the work; and WHEREAS, Consultant and County intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the work and related terms and conditions to govern the relationship between the Consultant and County in connection with the work. NOW, THEREFORE, for good and valuable consideration, including the conditions set forth herein, the parties agree to the following: AGREEMENT 1. Scope of the Work: The Work shall be comprised of the following services: 1) Review of County Methodology; 2) Review of County Draft Study, and; 3) Presentation as described in the Consultant's proposal attached hereto as "Exhibit A." 2. Consultant's Performance: Consultant shall be responsible for the completeness and accuracy of the work, 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 Consultant's Work shall not relieve Consultant of any of its responsibilities. Consultant shall perform the work in a skillful, professional, and competent manner and in accordance with the standards of care, skill, and diligence applicable to others performing similar work. 3. Time of Performance: Consultant shall commence the work within ten (10) business days after the date of this Agreement. All work shall be completed not later than December 31, 2005, unless approved by change order to this contract. 4. Compensation and Payment: In consideration of its performance of the scope of work, Consultant shall be paid monthly based on percent of completion by task and direct 1 expenses at cost. The total not to exceed fee is $14,850.00. Payment shall be made in accordance with the following: a. Consultant shall submit to County monthly invoices of the time spent and expenses incurred during the previous calendar month. b. The professional fees and reimbursable expenses shall be due and payable within thirty (30) days after submittal by Consultant, together with submission of any required clarification and documentation. c. Hourly rates shall be as provided in the cost proposal included in Exhibit "B" and incorporated herein by this reference. Fractional hours will be billed at the nearest one-quarter hour. d. The parties hereto recognize that the Scope of the Work may change. When Consultant 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, Consultant shall immediately advise County of such belief and shall also provide a statement of the maximum additional charges for such work. Consultant 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. e. Consultant 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. f. Additional services, if required beyond the Scope of the Work, shall be separately negotiated and agreed to in writing by both the County and Consultant prior to the Consultant performing the additional service. 5. Project Management: Clancy Mullen shall be designated as Consultant's Project Manager for the work. Greg Schroeder, P.E., Eagle County, shall be County's Project Manager responsible for this Agreement. All correspondence between the parties hereto regarding this project shall be between and among the project managers. Either party may designate a different project manager by notice in writing. 6. Independent Consultant: 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. Consultant shall be, and shall perform as, an independent Consultant. No agent, employee, or servant of Consultant shall be, or shall be deemed to be, the employee, agent or servant of County. Consultant shall be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, servants and subcontractors during the performance of this Agreement. 2 7. Personnel: Consultant understands and hereby acknowledges that County is relying primarily upon the expertise and personal abilities of Clancy Mullen. This Agreement is conditioned upon the continuing direct personal involvement of said personnel in the work. County understands that other employees of Consultant will be working on portions of the work; however, these employees shall be under the direct supervision of said personnel at all times. In the event that said personnel is unable to remain involved in the work, Consultant shall immediately notify County and County shall have the option to terminate this Agreement. 8. Ownership of Documents: All documents which are obtained during or prepared in the performance of the work are copyrighted and shall remain the property of the County, shall be so designated on the face of the document, and are to be delivered to County's Project Manager before final payment is made to Consultant or upon earlier termination of this Agreement. 9. Electronic Submittals: Project development correspondence shall be produced on Microsoft software products and base mapping and plan sheets will be made utilizing AutoCad 2000 or newer version. All project documentation shall be furnished on a CD to Eagle County. 10. Confidentiality: Consultant acknowledges that it may receive confidential information from County for use in connection with its performance of the work. Consultant further acknowledges that it may in the performance ofthe work develop information, including facts, data, and opinions, which are, or in County's judgment should be, confidential or limited in terms of dissemination. Consultant 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 of the work. All facts, data, and opinions developed by Consultant in the course of its performance of the work shall 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. Upon completion of the work, Consultant shall return, at County's request, all material it supplied to Consultant in connection with the performance of the work. II. No Assignment: The parties to this Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that in entering into this Agreement, County is relying upon the personal services and reputation of Consultant. Therefore, Consultant may not assign its interest in the Agreement, 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. 12. Conflicts of Interest: Neither Consultant nor its subcontractors, nor any of their respective principals, officers, employees, or agents shall, at any time during the term of this Agreement and continuing through three (3) months following completion of the work, perform consulting work which would constitute a conflict of interest, including but not limited to work 3 on behalf of persons owning property within the area which is the subject ofthe work. By acceptance of this Agreement, Consultant represents and warrants that any and all of its professional representations and associations, and those of its subcontractors and of their respective principals, officers, employees and agents, direct or indirect, which would conflict in any manner or degree with the professional and impartial performance of services required under this Agreement have been terminated. 13. Notices: Any notice and all 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: Consultant James B. Duncan and Associates, Inc. 13276 Research #208 Austin, TX 78750 Phone: (512) 258-7347 Fax: County: Eagle County Engineering P.O. Box 850 500 Broadway Eagle, CO 81631 Phone: (970) 328-3560 Fax: (970) 328-8789 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 if not), or three calendar days after deposit in the mails, as applicable. 14. Miscellaneous: a. Consultant 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. Consultant shall require all subcontractors to agree to the provisions of this subparagraph. 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 of, 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 laws of the State of Colorado, without reference to choice of law rules. The parties 4 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. 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. IS. Budget! Appropriation: Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement, nor shall any payment be made to Consultant in respect of any period after any December 31 of each calendar year during the term of this Agreement, without an appropriation therefor by the County in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25 of Title 30 of the Colorado Revised Statutes, the Local Government Budget law (C.R.S. 929-1-101 et seq.), and the TABOR Amendment (Constitution, Article X, Sec. 20). GENERAL CONDITIONS 1. Consultant shall provide and pay for labor, materials, equipment, tools, utilities, permits, licenses, transportation, and other facilities and services necessary for proper execution and completion of the work. 2. Consultant shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Any failure by Consultant to do so will not relieve him from responsibility for successfully performing the work without additional expense to the County. County assumes no responsibility for understanding or representations concerning conditions made by and of its officers, employees or agents prior to the execution of this Agreement, unless such understanding or representations are expressly stated in the Agreement. 3. Consultant shall supervise and direct the work, using Consultant's best skill and attention. Consultant shall be solely responsible for coordinating all portions of the work. 4. Consultant, as soon as practicable, shall furnish in writing to the County the names of subcontractors and suppliers for each portion of the work. 5. No charge shall be made by Consultant for hindrances or delays from any cause whatever during the progress of any portion of the work, unless such hindrance or delay is caused in whole or in part by acts or omissions within the control of County. In any event, County may grant an extension of time for the completion of the work, provided it is satisfied that delays or hindrances were due to causes outside Consultant's control, e.g., weather, or to acts of omission or commission by the County, provided that such extensions of time shall in no instance exceed the time actually lost to Consultant by reason of such causes, and provided further that Consultant shall have given County immediate (as determined by the circumstances, but not exceeding 48 hours) notice in writing of the cause of the detention or delay. 6. Consultant warrants to County that the work will conform to the requirements of the Agreement. 5 7. Consultant shall comply with and give notices required by all federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the work. If the Consultant performs work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to County, Consultant shall assume full responsibility for such work and shall bear the attributable costs. Consultant shall promptly notify County in writing of any conflicts between the specifications for the work and such governmental laws, rules and regulations. 8. Consultant's Insurance: Consultant shall purchase and maintain in a company or companies to which County has no reasonable objection such insurance as will protect Consultant and County from claims which may arise out of or result from Consultant's operations under the Agreement, whether such operations be by himself or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The insurance required shall be written for not less than any limits of liability required by law or by those set forth below, whichever is greater. All such insurance shall be written by companies authorized to do insurance business in the State of Colorado. a. Workmen's Compensation including occupational disease, and Employer's Liability Insurance in amounts and coverage as required by the laws of Colorado. b. Comprehensive General Liability Insurance - Consultant shall maintain a Comprehensive General Liability Form of Insurance with bodily injury liability limits of $1,000,000 for anyone (l) person in anyone occurrence and $1 ,000,000 for two (2) or more persons in anyone occurrence and with property damage liability limits of$l ,000,000 in any one occurrence. c. Consultant shall maintain Professional Liability Insurance with minimum coverage limits of $1 ,000,000 per occurrence, $1,000,000 aggregate. Certificates of Insurance: Certificates of Insurance acceptable to the County shall be filed with the County prior to commencement of the work. These Certificates shall contain provisions naming the County as an additional insured under Consultant's Insurance for Comprehensive General Liability, and that coverage afforded under the policies will not be canceled until at least thirty days prior written notice has been given the County. Consultant and his subcontractors shall not permit any of his subcontractors to start work until all required insurance have been obtained and certificates with the proper endorsements have been filed with the County. Failure of the Consultant to comply with the foregoing insurance requirements shall in no way waive the County's rights hereunder. Subcontractors: Before permitting any of his subcontractors to perform any work under this contract, Consultant shall either (a) require each of his subcontractors to procure and maintain during the life of his subcontracts, insurance of the types and in the amounts as may be applicable to his work, which type and amounts shall be subject to the approval of the County, or (b) insure the activities of his subcontractors in his own policy. 6 9. To the fullest extent permitted by law, Consultant shall indemnify and hold harmless, the County, its Board of County Commissioners and the individual members thereof, its commissions, agencies, departments, officers, agents, employees or servants, and its successors (collectively, the "County Representatives") from any and all fines, demands, losses, liabilities, claims, damages and judgments, including reasonable attorney's fees, together with all costs and expenses arising out of and resulting from performance of the work thereto which may accrue against, be charged to, or be recoverable from the County, its Board of County Commissioners, and its individual members thereof, its commissions, agencies, departments, officers, agents, employees or servants and its successors, as a result of the willful or negligent acts, errors or omissions of Consultant, its employees or agents, in connection with Consultant's work, except to the extent such injury or damage results from the willful acts of the County or any of the County Representatives. The parties agree that this clause shall not waive the benefits or provisions ofC.R.S. 24-10-114 or any similar provision oflaw. 10. After execution of the Agreement, changes in the work may be accomplished by Change Order or by order for a minor change in the work. County, without invalidating the Agreement, may order changes in the work within the general scope of the Agreement consisting of additions, deletions or other revisions. a. No Change Orders or other form of order or directive which requires additional compensable work to be performed may be issued or be effective unless accompanied by a written assurance to the Consultant that lawful appropriations to cover the costs of the additional work have been made. b. A Change Order shall be written order to the Consultant signed by County to change the work. c. County may also order minor changes in the work not involving changes in the Contract Price or the Contract Time. Such changes shall be written orders and shall be binding on the Consultant and County. Consultant shall carry out such written orders promptly. 11. Final Payment: Upon written notice from Consultant that the work is complete, County will make a final inspection with Consultant, and will notify Consultant in writing of all particulars in which this inspection reveals that the work is incomplete or defective. Consultant shall immediately take such measures as are necessary to remedy such deficiencies. After Consultant has completed all such corrections to the satisfaction of County, Consultant may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation called for in the contract documents, and such other data and schedules as County may reasonably require, together with complete and legally effective releases or waivers (satisfactory to County) of all liens arising out of, or filed in connection with the work. In lieu thereof, and as approved by County, Consultant may furnish receipts or releases in full; an affidavit of Consultant that the releases and receipts include all labor, services, material, and equipment for which lien could be filed, and that all payrolls, material, and equipment bills, and other indebtedness connected with the work, for which County or his property might in any way be responsible, have been paid or 7 otherwise satisfied; and consent of the surety, if any, to final payment. If any subcontractor, manufacturer, fabricator, supplier, or distributor fails to furnish a release or receipt in full, Consultant may furnish a bond or other collateral satisfactory to County to indemnify County against any lien. 12. Consultant warrants and guarantees that all work, materials, and equipment covered by any application for payment, whether incorporated in the project or not, will pass to County at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens"). 13. Final payment is subject to the Final Settlement requirements and time periods set forth in C.R.S. S38-26-107. 14. The Consultant shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Agreement. 15. Consultant shall promptly correct work rejected by County as failing to conform to the requirements of the Agreement and Consultant shall bear the cost of correcting such rejected work. 16. County may terminate this Agreement, in whole or in part, for its convenience upon providing written notice, by delivery or by mail, to Consultant. Upon such 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 Consultant complete particular tasks or subtasks on a time and reimbursable expenses basis as provided in paragraph 4 hereof. Upon termination Consultant shall deliver to County all photographs, drawings, illustrations, text, data, and other documents entirely or partially completed, together with all material supplied to Consultant by County. Payment will be due within thirty (30) days after Consultant has delivered the last of the partially completed documents, together with any records that may be required to determine the amount due. 17. In the event of any conflict between the provisions of these General Conditions and the Specifications or the Agreement, the terms of the Specifications or the Agreement, as the case may be, shall control. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. 8 "COUNTY" COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: BOARD OF COUNTY COMMISSIONERS . By: A . Menconi Clerk to the Board of Chairman County Commissioners "CONSULTANT" JAMES DUNCAN AND ASSOCIATES, INe. STATE OF ) ) ss County of ) was acknowledged before me this by as (( SC~~\ ~xj~ WITNESS my hand and official seal. My commission expires ,\"...."" JOLENE C MAAS ","..~y PUg'" . i~~":<,\ Notary Public. State of Texas ; : : @ My Commission Expires ....:;.>..\~:;,:: October 07. 2007 ""f'?~l\'''''' 9 Exhibit A SCOPE OF SERVICES Project Understanding The County would like to author the update of the road impact fee study. It is the County's intent to model the new study using many of the methodologies of the original study prepared by Duncan Associates. Duncan Associates will provide services to assist the County in this update and to ensure that the update is done in every manner consistent with Colorado law and constitutional standards. Task 1: Review of County Methodology During the data gathering phase, and based upon preliminary estimates, the County discovered that the existing road deficiencies were quite high, and subsequently cannot be utilized for road impact funds. To minimize this large existing road deficiencies, the County developed a "percentage based deficiency" concept, and applied that percentage to lessen the existing deficiency. This gave the County a preliminary impact fee which was more in line with its expectations. Duncan Associates will review the County's proposed methodology and calculations and will provide comments to assist the County to refine the methodology and calculations so that it is consistent with Colorado law and constitutional standards. Comments will be provided via telephone or e-mail. There may be several rounds of comments and response. Deliverable: Comments on County methodology Task 2: Review of County Draft Study Once the County and Duncan Associates have developed a sound methodology, the County will then prepare and deliver a draft study for review. Duncan Associates's will critique it, play "devil's advocate," and give feedback allowing the County to finalize the study. Comments will be provided via telephone or e-mail. There may be several rounds of comments and response. Deliverable: Comments on County draft study Task 3: Presentation Prior to adoption of the study and impact fees, Duncan Associates will make a presentation to the County Commissioners. Deliverable: Presentation Exhibit B CONSULTANT COMPENSATION The presentation will be billed at a fixed-fee of $2,850, including personnel time and all travel expenses. All other services will be billed at an hourly rate of $150. There will be no additional charges for direct or indirect expenses. The total noHo-exceed cost of the professional services described in the accompanying Scope of Services is $14,850. The breakdown of project cost by task is presented below. The County will be billed monthly based on hours spent or presentations made. Estimated Not-to-Exceed Task Hours Amount I: Review County Methodology 40.00 $6,000 2: Review County Draft 40.00 $6,000 3: Presentation nla $2,850 Total $14,850 Additional trips shall be provided at $2,850 per person-day. Other additional services beyond those specified in the accompanying Scope of Services may be negotiated or billed on an hourly basis.