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HomeMy WebLinkAboutC08-023 CONSULTING AGREEMENT BETWEEN EAGLE COUNTY AND DUANE L. PENNY, INC. This Consulting Agreement ("Agreement") dated as this 22nd day of January, 2008, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its Board of County Commissioners ("County"), and Duane L. Penney, Inc., a Colorado corporation with its principle place of business at 13848 Harrison Street, Thornton, Colorado 80602 ("Consultant"). WiTNESSETH: WHEREAS, County is in need of a consultant to assist with site selection, design and equipment purchase for the proposed recycling Facility at the Eagle County landfill ("Facility"); and WHEREAS, Consultant possesses the unique knowledge, understanding and contacts to assist County in achieving its goals and objectives; and WHEREAS, County wishes to hire Consultant to perform the tasks associated with such services as described in Section 1.1 hereunder; WHEREAS, County and Consultant intend by this Agreement to set forth the scope ofthe responsibilities ofthe Consultant in connection with the services and related terms and conditions to govern the relationship between Consultant and County in connection with the services. NOW, THEREFORE, in consideration of the foregoing premises and the following promises, Eagle County and Consultant agree as follows: 1, Services Provided: 1.1 As more fully described and set forth in Exhibit "A," attached hereto and incorporated herein by this reference, the Consultant will provide the following consulting services (hereinafter called "Consulting Services") to County: a) Review and analyze Eagle County's recycling center feasibility study; and b) Assess proposed Facility site and make recommendations; and c) Develop future recycling plans for Eagle County so as to establish and achieve County's goals and objectives; and d) Make recommendations as to Facility layout and as to the operational schematics for the facility; and e) Review operational schematics and coordinate with equipment manufacturer for details pertaining to Facility layout; and f) Specify equipment to be incorporated into the project and assist in determining purchase prices and operational costs for the equipment; and g) Review design drawings and specifications and construction drawings; and h) Coordinate the start up operation at completion ofthe Facility with landfill staff. 1.2 The Consultant agrees that Consultant will not enter into any consulting arrangements with third parties that will conflict in any manner with the Consulting Services. Z. COMMENCEMENT AND COMPLETION OF THE WORK 2.1 This Agreement shall commence upon execution of the Agreement and, subject to the provisions of Section 2.2 hereof shall conclude upon completion of the Consulting Services. 2.2 This Agreement may be terminated by either party for any other reason at any time, with or without cause, and without penalty whatsoever therefore. 2.3 In the event of any termination of this Agreement, Consultant shall be compensated for all hours of work then completed, plus approved expenses. 3. Codependent Contractor: 3.1 With respect to the provision of the Consulting Services hereunder, Consultant acknowledges that Consultant is an independent contractor providing Consulting Services to County. Nothing in this Agreement shall be deemed to make Consultant an agent, employee, partner or representative of County. Moreover, this Agreement creates no entitlement to participate in any of the Employee Benefit Plans of County including insurance, paid vacation and recognized holidays. 3.2 The Consultant shall not have the authority to, and will not make any commitments or enter into any agreement with any party on behalf of County without the written consent of a senior management representative of County. 3.3 The Consultant will maintain liability, unemployment and workman's compensation insurance on his/her own behalf, as necessary. 4. Remuneration: 4.1 For the Consulting Services provided hereunder, County shall pay to the Consultant a fee of one hundred five dollars ($105.00) per hour of work performed on County specific, pre- approved project as described in Section 1.1 herein. The total cost for all of the Consulting Services shall not exceed thirty nine thousand, seven hundred ninety five dollars ($39,795.00) absent an amendment to this agreement signed by both parties. Consultant shall submit monthly invoices to County, which invoices shall include a description of services performed and shall indicate the number of hours worked. Fees will be paid within thirty (30) days of receipt of a proper and accurate invoice from Consultant respecting Consulting Services. The invoice shall include a description of services performed. Upon request, Consultant shall provide County with such other supporting information as County may request. 2 4.2 Pre-approved business and travel expenses incurred by Consultant will be paid by County within thirty (30) days of receipt of a proper and accurate invoice from Consultant respecting such expenses. The invoice shall contain a detailed description of expenses incurred. 4.3 County will not withhold any taxes from monies paid to the Consultant hereunder and Consultant agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 5. IndemniiScatiion: 5.1 Within the limits allowed by law, Consultant shall indemnify County for, and hold and defend the County and its officials, boazds, 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 presentations by, the Consultant 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 regazd to the involvement of the Consultant. 6. Consultant's Professional Level of Care: 6.1 Consultant shall be responsible for the completeness and accuracy of the Consulting Services, including all supporting data and other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Consulting Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Consulting Services in a skillful, professional and competent manner and in accordance with the standazd of care, skill and diligence applicable to consultants, with respect to similar services, in this area at this time. 7. Notlc~: 7.1 Any notice to be given by any party to the other shall be in writing and shall be deemed to have been duly given if delivered personally, by facsimile transmission or if sent by prepaid first class mail, and for the purposes aforesaid, the addresses of the parties are as follows: (a) Rick Ullom Eagle County Project Manager 590 Broadway PO Box 850 Eagle, CO 81631 Phone Number: (970) 328-8880 Fax Number: (970) 328-8899 (b) Duane L. Penny 3 Duane L. Penny, Inc. 13$48 Harrison Street Thornton, Colorado 80602 Phone Number: (720) 244-1172 Fax Number: (303) 452-2772 (b) 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 depositary of the U.S. Postal Service. 8. Jarisdiction and Confidentiality: 8.1 This Agreement shall be interpreted in accordance with the laws ofthe State ofColorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. 8.2 The Consultant and County acknowledge that, during the term of this Agreement and in the course of the Consultant rendering the Consulting Services, the Consultant may acquire knowledge of the business operations of Couirty to the point that the general method of doing business, the pricing of products, the lists of customers and other aspects of the business affairs of County will become generally known and the Consultant shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any knowledge, information or facts concerning any of the past or then business operations, pricing or sales data of County and shall retain all knowledge and information which he has acquired as the result of this Agreement intrust in a fiduciary capacity for the sole benefit of County, its successors and assigns during the term ofthis Agreement, and far a period of five (S) years following termination of this Agreement. 9. MisceUaneoas: 9.1 This Agreement constitutes the entire Agreement between the parties related to its subject matter. It supersedes all prior proposals, agreements and understandings. 9.2 This Agreement is personal to the Consultant and may not be assigned by Consultant. 9.3 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 tens, covenant, or condition herein or the breach thereof. 9.4 If any conflict exists between the provisions of this Addendum and Exhibit "A," the provisions of this Addendum shall control. 9.5 If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, such portion shall be deemed severable and its invalidity or its 4 unenforceability shall not affect the remaining provisions; such remaining provision shall be fully severable and this Agreement shall be construed and enforced as if such invalid provision had never been inserted into this Agreement. 9.6 This Agreement may be amended, modified, changed, or terminated in whole or in part only by written agreement duly authorized and executed by both County and Consultant. This Agreement represents the full and complete understanding of County and Consultant and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and Consultant with respect to the subject matter contained herein. 9.7 Notwithstandinganything tothe contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Consultant in respect of any period after December 31, 2008 without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. §29-1-101 et.seq.) and ~e TABORAmendment (Colorado Constitution, Article X, Sec. 20). lp. PROVISION MANDATED BY HOUSE BII~I.1343: PROHIBITIONS ON PUBLIC CON1TiACT FOR SERVICES 10.1 The Consultant shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services; or enter into a contract with a subcontractor that fails to certify to the Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 10.2 The Consultant shall confirm or attempt to confirm through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that the Consultant does not employ any illegal aliens. If the Consultant is not accepted into the Basic Filot Verification Program prior to entering into a public contract for services, the Consultant shall apply to participate in the Program every three months until the Consultant is accepted or the public contract for services has been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: h~00~aa.m~-~d~.a:~nna~,esra®lovea~~iao~ 10.3 The Consultant shall not use the Basic Pilot Verification Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 10.4 If the Consultant obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Consultant shall be required to: a. Notify the Subcontractor and the County within three days that the Consultant has actual knowledge that the Subcontractor is employing or contracting with an illegal alien; and b. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the Subcontractor does not stop employing or contracting with the illegal alien; except that the Consultant shall not terminate the contract with the Subcontractor if during such three days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed ar contracted with an illegal alien. 10.5. The Consultant shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. 10.6 If a Consultant violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated, the Consultant shall be liable for actaal and consequential damages to the County. IN WITNESS WIIEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: ~~ Clerk to the Boafd of County Commissioners COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY CONIlVIISSIONERS Peter F. Runyon, Chairman CONSULTANT By: Duane L. Penney 6