HomeMy WebLinkAboutC09-384 Highland Group Inc AgreementAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND
THE HIGHLAND GROUP, INC.
THIS AGREEMENT ("Agreement"), effective this 15th day of August, 2009 is between Eagle
County, Colorado, ("County") and The Highland Group, Inc. a company with its principal place
of business at 3020 Carbon Place Suite 202 Boulder Colorado, 80301 ("Consultant").
WITNESSETH:
WHEREAS, County is interested in conducting a market wide analysis of senior housing in
Eagle County; and
WHEREAS, Consultant is authorized to do business in the State of Colorado and has experience
and expertise in running marketing studies for senior housing; and
WHEREAS, County and Consultant intend by this Agreement to set forth the scope of the
responsibilities of Consultant in connection with the Project and related terms and conditions to
govern the relationship between Consultant and County in connection with this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the following promises,
Eagle County and Consultant agree as follows:
1. SCOPE OF WORK: The following will collectively be referred to as the "Work:"
A. Consultant agrees to produce an opinion letter summarizing Consultant's findings
from their market analysis of senior housing in Eagle County as set forth more
particularly in Consultant's proposal dated July 31, 2009 attached hereto as Exhibit "A"
and incorporated herein by this reference.
B. Consultant agrees that Consultant will not enter into any service contracts or
consulting arrangements with third parties during the term of the Agreement that will
conflict in any manner with the Work to be provided under this Agreement.
2. CONSULTANT'S REPRESENTATIONS:
Consultant has familiarized itself with the nature and extent of the contract documents,
work, locality, and with all local conditions, and federal, state, and local laws, ordinances, rules,
permits and regulations that in any manner may affect cost, progress, or performance of the
Work.
3. CONSULTANT'S PROFESSIONAL LF,VEL OF CARE:
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
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Consulting Services in a skillful, professional and competent manner and in accordance with the
standard of care, skill and diligence applicable to consultants, with respect to similar services, in
this area at this time.
4. CONFIDENTIALITY:
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 County 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 (except in the course of properly satisfying Consultant's duties hereunder),
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 in trust in a fiduciary capacity for the sole benefit of County, its successors and
assigns during the term of this Agreement, and for a period of five (5) years following
termination of this Agreement.
5. CONTRACT PRICE:
A. The funds appropriated for this Project are equal to or in excess of the contract
amount. County shall pay Consultant for performance of the work in accordance with the
Contract Documents in current funds as follows:
Compensation for Consultant's Work shall be five thousand dollars ($5,000).
Two thousand five hundred dollars ($2,500), or 50%, will be paid upon execution
of the Agreement by the County. The other two thousand five hundred dollars
($2,500), or remaining 50%, will be paid by County to Consultant when Wark has
been completed to the satisfaction of the County.
B. Notwithstanding anything to the 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, 2009 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 the TABOR Amendment (Colorado Constitution,
Article X, Sec. 20).
6. COMMENCEMENT AND COMPLETION OF THE WORK:
Consultant shall commence the Work prior to or promptly after execution of this Agreement by
both parties and shall be completed within 30 calendar days after commencement of the Work.
Consultant agrees to notify County if achievement of the Completion Date appears unlikely as
soon as it so appears to the Consultant, and thereupon, County and Consultant will meet to
discuss the reasons for delay and means of achieving timely completion. Consultant will use its
best efforts to achieve timely completion.
7. INDEMNIFICATION:
The Consultant shall, to the fullest extent permitted by law, indemnify and hold harmless County
and any of its officers, agents and employees against any losses, claims, damages or liabilities for
which County ar any of its officers, agents, or employees may become subject to, insofar as any
such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or
are based upon any performance or nonperformance by Consultant hereunder; and Consultant
shall reimburse County for any and all legal and other expenses incurred by County in
connection with investigating or defending any such loss, claim, damage, liability or action.
8. ENFORCEMENT REMEDIES:
A. The Consultant's obligations hereunder shall survive termination of the
Agreement.
B. County and Consultant agree that this Agreement may be enforced for specific
performance, injunctive, or other appropriate relief, including damages, as may be available
according to the laws and statutes of the State of Colorado. It is specifically understood that by
executing this Agreement, both County and the Consultant commit themselves to perform
pursuant to these terms contained herein. In the event that an action is brought to enforce this
Agreement, the prevailing party shall be entitled for the recovery of its costs and fees, including
reasonable attorney's fees.
9. MISCELLANEOUS:
A. This Agreement shall be governed and construed in accordance with the laws of
Colorado. Venue for any action arising out of any dispute pertaining to this Agreement shall be
in the State of Colorado District Court in and for Eagle County, Colorado.
B. This Agreement, and the rights and obligations created hereby, shall be binding
upon and inure to the benefit of County and Consultant and their respective successors and
assigns. Nothing herein expressed or implied is intended or should be construed to confer or
give to any person or entity other than County or Consultant and their respective successors and
assigns, any right, remedy or claim under or by reason hereof or by reason of any covenant or
condition herein contained.
C. 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 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.
D. 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.
E. The parties hereto agree that neither has made or authorized any agreement with
respect to the subject matter of this instrument other than expressly set forth herein, and no oral
representation, promise, or consideration different from the terms herein contained shall be
binding on either party, or its agents or employees hereto.
F. All of the covenants herein contained shall be binding upon and inure to the
benefits of the parties hereto, their respective successors and assigns.
G. County may terminate this Agreement, in whole or in part, for any reason, at any
time, with or without cause, upon providing ten (10) days notice to Consultant. Upon such
termination, County shall be liable for Services satisfactorily completed prior to the notice.
H. If any conflict exists between the provisions of this Agreement and Exhibit "A",
the provisions of this Agreement shall control.
10. INSURANCE
At all times during the term of this Agreement, Consultant shall maintain commercial general
liability insurance in the minimum amount of one-hundred-fifty thousand dollars ($150,000.00)
per occurrence and the minimum aggregate amount of six-hundred thousand dollars
($600,000.00). Consultant shall also carry professional liability insurance in the amount of five-
hundred thousand dollars ($500,000.00). Consultant will also carry Worker's Compensation
insurance as required by Colorado law.
11. NOTICE AND AUTHORIZED REPRESENTATIVES
Any notice and all communications required under this Agreement shall be given in writing by
personal delivery, fax or mail to the appropriate party at the following addresses:
County:
Alex Potente, Esq.
Eagle County Government
Department of Housing and Development
500 Broadway
P.O. Box 850
Eagle, Colarado 81631
(970) 328-8698 (phone)
(970) 328-8787 (fax)
Consultant:
Elisabeth Borden
The Highland Group
Boulder Steel Yards
3020 Carbon Place Suite 202
Boulder, CO 80301
(720) 565-0966 (phone)
(720) 294-9663 (fax)
Notices shall be deemed given on the date of delivery or three days after the postmarked date of
deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service.
12. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES:
If Consultant has any employees or subcontractors, Consultant shall comply with C.R.S. § 8-
17.5-101, et seq., regarding Illegal Aliens - Public Contracts for Services, and this Contract. By
execution of this Contract, Consultant certifies that it does not knowingly employ or contract
with an illegal alien who will perform under this Contract and that Consultant will participate in
the E-verify Program or other Department of Labor and Employment program ("Department
Program") in order to confirm the eligibility of all employees who are newly hired for
employment to perform work under this Contract.
A. Consultant shall not:
(i) Knowingly employ or contract with an illegal alien to perform work under
this contract for services; or
(ii) 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.
B. Consultant has confirmed the employment eligibility of all employees who are
newly hired for employment to perform work under this Contract through
participation in the E-verify Program or Department Program, as administered by
the United States Department of Homeland Security. Information on applying for
the E-verify program can be found at:
http://vvw~v.dhs.gov/aprevprot/pro 7r~~gc 1185221678150.shtm
C. The Consultant shall not use either the E-verify program or other Department
Program procedures to undertake pre-employment screening of job applicants
while the public contract for services is being performed.
D. 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:
(i) 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
(ii) 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 or contracted with an illegal alien.
E. 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 established in C.R.S. § 8-17.5-102(5).
F. If a Consultant violates these prohibitions, the County may terminate the contract
for a breach of the contract. If the contract is so terminated specifically for a
breach of this provision of this Contract, the Consultant shall be liable for actual
and consequential damages to the County as required by law.
G. The County will notify the office of the Colorado Secretary of State if Consultant
violates this provision of this Contract and the County terminates the Contract for
such breach.
13. Sole Source Government Contracts: If the Consultant has entered into a sole
source government contract or contracts with the State of Colorado or any of its political
subdivisions as defined in Article XXVIII of the Colorado Constitution which including
this contract in the aggregate on an annual basis are equal to or exceed the amount of
$100,000, then the following provisions apply:
A. Because of a presumption of impropriety between contributions to any
campaign and sole source government contracts, Consultant, on behalf of itself,
any person who controls ten percent or more of the shares of or interest in the
Consultant, and the Consultant's officers, directors and trustees (collectively, the
"Contract Holder") shall contractually agree, for the duration of the contract and
for two years thereafter, to cease making, causing to be made, or inducing by any
means, a contribution, directly or indirectly, on behalf of the Contract Holder or
on behalf of his or her immediate family member and for the benefit of any
political party or for the benefit of any candidate for any elected office of the state
or any of its political subdivisions.
B. The parties further agree that if a Contract Holder makes or causes to be
made any contribution intended to promote or influence the result of an election
on a ballot issue, the Contract Holder shall not be qualified to enter into a sole
source government contract relating to that particular ballot issue.
C. The parties agree that if a Contract Holder intentionally violates sections
15 or 17(2) of Article XXVIII of the Colorado Constitution, as contractual
damages that Contract Holder shall be ineligible to hold any sole source
government contract, or public employment with the state or any of its political
subdivisions, for three years.
D. The Contract Holder agrees to comply with the summary and notice
provisions of Section 16 of Article XXVIII of the Colorado Constitution.
E. These provisions shall not apply to the extent they have been enjoined or
invalidated by a court of competent jurisdiction.
F. All terms used in this Section and not otherwise defined in this Agreement
shall have the same meaning as set forth in Article XXVIII of the Colorado
Constitution.
THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WH EOF, COiJNTY and CONSULTANT have executed this Agreement this
~day of 'l~ , 2009.
l '
COUNTY OF EAGLE, STATE
OF COLORADO, by and
through its COLJNTY MANAGER
By:
County
HIGHLAN GROUP, IN~~'/~
/
By: %'~'~
E isabeth Borden
TERM SHEET
1) Requested hearing date: (First choice) (Second choice)
N/A
2) For Countv Mana~er si~nature:
Yes
3) Requesting department: Housing & Development
4) Title: AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND
THE HIGHLAND GROUP, INC.
5) Check one: Consent: On the Record: n/a
6) Staff submittin~: ~lex Potente
7) Purpose: Market study for refined assessment of need for seniors housing
8) Schedule: Work to be completed by mid-September
9) Financial considerations: $5000; this has already been budgeted and
approved.
9) Other:
RECEIVE
SEP 9 200'
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,- APPROVED /~S TO FORM
ey:
Eagle County q~orney's Office
By:
Eagle County Commissioners~ pff~ce
