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HomeMy WebLinkAboutC06-343 AGREEMENT This Agreement (the "Agreement"), made as of the _ day of November, 2006, by and between Eagle County, Colorado ("County") and Stewart Environmental Consultants, Inc. ("Contractor"), Witnesseth: Whereas, County desires to construct a Household Hazardous Waste Facility (the "Facility") at its landfill near Wolcott, Colorado; and Whereas, Contractor is authorized to do business in the State of Colorado and has experience and expertise in household hazardous waste facility project analysis, design and management and associated regulatory permitting; and Whereas, Contactor has submitted to County, and County wishes to accept, a proposal (the "Proposal"; copy attached hereto as Exhibits A and B and made a part hereofby this reference) for Contractor to provide County with project analysis, design and management and associated regulatory permitting in connection with construction ofthe Facility, Now, therefore, in consideration ofthe foregoing premises and the following promises, the parties hereto agree as follows: 1. Scope of the Work: The services to be provided to County by Contractor under this Agreement (the "Work") shall be as described in the Proposal. In the event of a conflict between the terms of this Agreement and the terms of the Proposal, this Agreement shall control. The Parties hereto recognize that the scope ofthe Work may change. When and if Contractor 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, Contractor shall immediately advise County of such belief and shall also provide a statement of the maximum additional charges for such work. Contractor 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. Contractor is 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, and hereby represents that it has done so. Any failure by Contractor to have done so will not relieve it from responsibility for successfully performing the Services without additional expense to County. 2. Professional Level of Care: Contractor 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 Contract for A&E Services - Household Hazardous Waste Facility shall correct, at its sole expense, all significant errors and omissions therein, notwithstanding any acceptance or approval by County of the portion of the Work involved. Contractor and its agents, subcontractors and employees shall perform the Work in a skillful, professional and competent manner and in accordance with the prevailing standard of care, skill and diligence applicable in Colorado with respect to similar work. 3. Time of Performance and Termination: a) Contractor shall commence the Work five (5) business days after the execution of this Agreement and shall complete the individual tasks of the Work in conformity with the completion dates set forth in Exhibit "B," provided that completion dates for anyone 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 any reason, on providing written notice of such termination to Contractor. Upon such termination, County shall be liable only for Work satisfactorily completed prior to the notice, provided that, at its sole option, County may require that Contractor complete particular portions of the Work on a time and reimbursable expenses basis consistent with paragraph 4 hereof. Within a reasonable time after termination, Contractor shall deliver to County all drawings, illustrations, text, data and other documents entirely or partially completed, together with all material supplied to Contractor by County. Payment will be due within thirty (30) days after Contractor has delivered the last of the partially completed documents, together with any records that may be required to determine the amount due. c) Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to County nor shall any payment be made by County for any Work done after December 31, 2006, 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.). 4. Compensation and Payment: In consideration of its performance of the Work, Contractor shall be paid for professional time and reimbursable expenses actually and directly spent on or incurred in performing the Work, provided that the total payment for each Phase set forth in the Fee Proposal which is a part of Exhibits A and B hereto shall not exceed the amount set forth therein. Payment shall be made in accordance with the following: a) Contractor 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 Exhibits A and B, and shall describe the Work performed, including the percentage of completion Contractor contends was accomplished during the month, and expenses incurred. Upon request, Contractor shall provide County with such other supporting information as County may request. County will compensate Contractor for 2 Contract for A&E Services - Household Hazardous Waste Facility additional accounting on an hourly basis for other supporting information requested by the County and not specifically called for in this Agreement. b) One Hundred percent (100%) of the professional fees and reimbursable expenses shall be due and payable within thirty (30) days after submittal by Contractor 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, incurred by Contractor and/or its agents or subcontractors 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 Contractor' s use), fax and photo-reproduction costs. d) 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 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 fmancial obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. 5. Proiect Management: Thomas S. Norman shall be designated as Contractor's Project Manager for the Work. Peter Fralick, Senior Engineer, Eagle County Facilities Management, 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 with copies of all correspondence delivered to the Client Representatives. Either party may designate a different project manager by notice in writing. 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. Contractor shall be, and shall perform as, an independent contractor. 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 its agents, employees, servants and subcontractors during the performance of this Agreement. 7. Personnel: Contractor understands and hereby acknowledges that County is relying primarily upon 3 Contract for A&E Services - Household Hazardous Waste Facility the expertise and personal abilities of Thomas S. Norman, and this Agreement is conditioned upon the continuing direct, personal involvement of Mr. Norman in the Work. Contractor may not subcontract or delegate any part ofthe Work or substitute subcontractors without County's written consent, which consent County may withhold in its sole discretion. The final plans to be provided by Contractor shall be completely reviewed by Mr. Norman. In the event that Mr. Norman is unable to remain involved in the Work, Contractor shall immediately notifY County and identifY a proposed new Project Manager. Contractor recognizes that dissatisfaction of County with the new Project Manager may precipitate termination ofthis Agreement under Section 3.b hereof. 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 fmal payment of moneys due to Contractor and shall at all times be deemed the property of County, whether or not the Work under this Agreement is completed. Electronic version of all documents will be submitted to County at completion of Work. Any other use or reuse by County or third parties other than as set forth herein will be at their sole risk and without liability oflegal exposure to Contractor. Significant differences may exist between electronic files and corresponding contract documents due to addenda, change orders or other revisions. Contractor makes no representations regarding the accuracy or completeness of the electronic files County receives under the provisions of this Article 8. 9. No Assi~ent: The parties to the Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that neither Contractor 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 msurance: a) Type of Insurance Coverage Limits 4 Contract for A&E Services - Household Hazardous Waste Facility b) Professional Liability $1,000,000 minimum c) Workers Compensation As required by Colorado law d) All insurance required hereby shall be issued by an insurance company or companies authorized to do business in the State of Colorado. Contractor shall deliver certificates of required insurance to the County within fifteen (15) calendar days of execution of this Agreement by County. e) Before permitting any subcontractor to perform any work under this Agreement, Contractor shall either (1) require each of his subcontractors 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 hereinabove. 11. Indemnification: Contractor 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 to the extent caused by the negligent acts or omissions of, or representations by, the Contractor 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 Contractor, its agents, employees or subcontractors. 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) Contractor: Thomas S. Norman Stewart Environmental Consultants, Inc. 3801 Automation Way, Suite 200 Fort Collins, CO 80525 Tel (970) 226-5500 Mobile (970) 217 -6501 b) County: Peter Fralick Senior Facilities Engineer PO Box 850 Eagle, CO 81631 Tel (970) 328-8881 Fax (970) 328-8899 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 5 Contract for A&E Services - Household Hazardous Waste Facility 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 ofthe U.S. Postal Service. 13. 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 ofrace, color, religion, national origin, sex, ancestry, physical handicap, sexual orientation, age, political affiliation or family responsibility. Contractor shall require all consultants 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 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 ofthe State of Colorado, without reference to choice oflaw 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. 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. 6 Contract for A&E Services - Household Hazardous Waste Facility 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 COMMISSIONERS ~ :~~a~~ David R. Stewart STATE OF COLORADO ) ) ss: ) County of~ tCl Yvl E R The foregoing was acknowledged before me this g r-I--... day of N ~ t.I e h ~ ~c , 2006 by VJ'tv. J R <2r'"fln...> A 4 Witness my hand and official seal. My commission expires: 09 ~7 ~~ I I ~4~ Notary Public 7 Contract for A&E Services - Household Hazardous Waste Facility