HomeMy WebLinkAboutC10-265 Burns McDonnell Engineering Agreement AGREEMENT BETWEEN EAGLE COUNTY, COLORADO
AND
BURNS & McDONNELL ENGINEERING COMPANY, INC.
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THIS CONSULTING AGREEMENT ( "Agreement ") dated as of this I/, day of August, 2010, is
between Eagle County, Colorado ( "County "), and Burns & McDonnell Engineering Company, Inc.
( "Consultant').
RECITALS
WHEREAS, County intends to update its master plan for the Eagle County Regional Airport; and
WHEREAS, an independent fee estimate is required by the FAA in connection with master
planning services to be provided to County in connection with the Eagle County Regional Airport;
and
WHEREAS, Consultant has represented that it has the experience and knowledge in the subject
matter necessary to carry out the services outlined in Section 1, and has agreed to perform the
services as set forth herein.
AGREEMENT
NOW, THEREFORE, based upon the foregoing recitals, for good and valuable consideration,
including the promises set forth herein, the parties agree to the following:
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SECTION 1
SERVICES
1.1 Consultant will complete an Independent Fee Estimate in accordance with FAA Advisory
Circular 150/5100 -14D for the Eagle County Regional Airport, AIP Project No. 3- 56- 00XX -XX.
Consultant shall:
a. Analyze, review and interpret the provided Scope of Work and Construction Cost
Estimate; and
b. Provide a detailed engineering fee /cost estimate for an Airport Master Plan and Airport
Layout Plan Planning Services.
The foregoing shall be collectively known as the services ( "Services ").
1.2 Consultant agrees that Consultant will not enter into any consulting arrangements with third
parties that will conflict in any manner with the Services to be provided hereunder.
1.3 Consultant has given the County a proposal for performing the Services and represented that it
has the expertise and personnel necessary to properly and timely perform the Services.
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1.4 County will provide Consultant with information pertinent to the Services, including previous
reports and other data. Consultant may rely on information made available by County as accurate
without independent verification.
SECTION 2
TERM
2.1 This Agreement shall commence on the day and year first written above and shall continue in
full force and effect until completion of the Services, which shall be no later than seven (7) days
from the commencement of the Services. The time for performance of the Services may be
extended beyond the time set forth in this paragraph, on terms and conditions mutually agreed to in
writing by the parties.
2.2 The County may, by written notice, terminate this Agreement in whole or in part at any time,
either for the County's convenience or because of failure to fulfill the contract obligations. Upon
receipt of such notice, services shall be immediately discontinued (unless the notice directs
otherwise) and all materials as may have been accumulated in performing this Agreement, whether
completed or in progress, delivered to the County. In the event of any termination of this
Agreement, Consultant shall be compensated for Services satisfactorily completed, plus approved
expenses through the date of termination.
SECTION 3
INDEPENDENT CONTRACTOR
3.1 With respect to Services hereunder, Consultant acknowledges that Consultant is an independent
contractor providing Services to the County. Nothing in this Agreement shall be deemed to make
Consultant or its agents, employees, partners or representatives of County.
3.2 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 advance written consent of County.
SECTION 4
INSURANCE
During the course of performance of its Services, Consultant will maintain Worker's Compensation
Insurance with limits as required by statute, Employer's Liability insurance with limits of $1,000,000
and Commercial General Liability and Automobile Liability insurance each with combined single
limits of $1,000,000.
The Consultant aggregate liability for all damages connected with providing Services to the County,
shall be the policy limits imposed by Consultant's insurance or the compensation paid for the
Consultant's Services, whichever is greater.
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SECTION 5
PAYMENT
5.1 For Services to be performed, County shall pay Consultant the lump sum amount of three
thousand and 00/100 ($3,000.00). Invoices shall include a description of Services performed and
shall be based on percent complete as estimated by Consultant but in no event shall all of the
invoices exceed $3,000 unless a change in the scope of Services is negotiated and agreed to in writing
by the parties. Upon request, Consultant shall provide County with such other supporting
information as County may request.
5.2 County shall pay complete invoices within thirty (30) days of receipt of said invoice.
5.3 County will not withhold 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.
5.4 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made
to the County nor shall any payment be made to Consultant in excess of the amount for any work
done in respect of any period after December 31 of the calendar year for the term of this
Agreement, without the written approval in accordance with a budget adopted by the Board of
County Commissioners in compliance with the provisions of 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).
SECTION 6
OWNERSHIP OF DOCUMENTS
Documents (including electronic files) which are obtained during or prepared for approval of the
County during the performance of the Services shall remain the property of the County and are to
be delivered to County upon request, before final payment is made to Consultant, or upon earlier
termination of this Agreement.
SECTION 7
INDEMNIFICATION
Within the limits allowed by law, Consultant shall indemnify County for, and hold the County and
its officials, boards, officers, principals and employees harmless from, all costs, claims and expenses,
including reasonable attorney fees, arising from claims or in connection with the negligent acts or
omissions of the Consultant in performing the Services.
SECTION 8
CONSULTANT'S PROFESSIONAL LEVEL OF CARE
8.1 Consultant shall be responsible for the completeness and accuracy of the 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 County
has accepted or approved the Services shall not relieve Consultant of its responsibilities. Consultant
shall perform the Services in a skillful, professional and competent manner in accordance with the
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standard of care and diligence applicable to consultants with respect to similar services in this area at
this time.
8.2 Cost opinions and projections prepared by Consultant relating to construction costs and
schedules, operation and maintenance costs, equipment characteristics and performance, and
operating results are based on Consultants experience, qualifications and judgments as a design
professional. Since Consultant has no control over weather, cost and availability of labor, material or
equipment, labor productivity, construction contractors procedures and methods, unavoidable
delays, construction conditions and other factors affecting such cost opinions or projections,
Consultant does not guarantee actual rates, costs, performance, schedules and related items will not
vary from cost opinions and projections prepared by Consultant.
SECTION 9
NO ASSIGNMENT
Neither party may assign its rights or obligations under this Agreement without the prior written
consent of the other.
SECTION 10
NOTICES
10.1 Any notice and all written communications required under this Agreement shall be given in
writing by personal delivery, facsimile, ground shipping or U.S. Mail to the other party at the
following addresses:
To County:
Chris Anderson
Eagle County Airport Terminal manager
Phone: (970) 328 -2649
Fax: (970) 328 -2687
U.S. Mail: P.O. Box 850
Eagle, CO 81631
Ground Shipping: 219 Eldon Wilson Drive
Gypsum, CO 81637
To Consultant:
Mark A. Lichtwardt, P.E.
Associate Vice President
Burns & McDonnell Engineering Company, Inc.
9785 Maroon Circle, Suite 400
Centennial, Colorado 80112
Phone: (303) 721 -9292
Fax: (303) 721 -0563
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10.2 Notices shall be deemed given on the date of delivery; on the date the facsimile 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 any official depository of the U.S. Postal Service.
SECTION 11
DISPUTES, JURISDICTION AND VENUE
11.1 If a dispute arises relating to the performance of the Services to be provided and should that
dispute result in litigation, it is agreed that the substantially prevailing party (as determined by the
court) shall be entitled to recover all reasonable costs of litigation, including but not limited to, court
costs, attorney's fees and other related expenses.
11.2 The parties shall participate in good faith negotiations to resolve any and all disputes. Should
negotiations fail, the parties agree to submit to and participate in a third party facilitated mediation as
a condition precedent to resolution by litigation.
11.3 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and
the parties agree to submit to the exclusive venue and jurisdiction of the 5t Judicial District in the
County of Eagle, State of Colorado.
SECTION 12
CONFIDENTIALITY
The Consultant and County acknowledge that, during the term of this Agreement and in the course of the
Consultant rendering the Services, the Consultant and County may acquire knowledge of the business
operations of the other party not generally known and deemed confidential. The parties shall not disclose,
use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any
such confidential knowledge or information 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 the other party
during the term of this Agreement, and for a period of five (5) years following termination of this
Agreement. Any such information must be marked as confidential or proprietary and may be shared
with either party's personnel, consultants, attorneys and auditors on a need to know basis.
Notwithstanding the foregoing, the parties recognize that the County is subject to the Colorado
Open Records Act and nothing herein shall preclude a release of information that is subject to the
same.
SECTION 13
AUDIT
Consultant shall maintain for a minimum of three years, adequate financial and other records for
reporting to County. Contractor shall be subject financial audit by federal, state or county auditors or
their designees. Consultant authorizes County to perform audits or to make inspections of records
during normal business hours, upon 48 hours notice to Consultant.
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SECTION 14
PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES
If Contractor /Consultant has any employees or subcontractors, Contractor /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, Contractor /Consultant certifies that it does not knowingly
employ or contract with an illegal alien who will perform under this Contract and that
Contractor /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. Contractor /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
Contractor /Consultant that the subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under the public contract for
services.
B. Contractor /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:// ww-w. dhs.gov /xprevprot /prograr s,* 1185221678150.shtrn
C. The Contractor /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 Contractor /Consultant obtains actual knowledge that a subcontractor
performing work under the public contract for services knowingly employs or
contracts with an illegal alien, the Contractor /Consultant shall be required to:
(i) Notify the subcontractor and the County within three days that the
Contractor /Consultant has actual knowledge that the subcontractor is
employing or contracting with an illegal alien; and
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 Contractor /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.
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E. The Contractor /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 Contractor /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 Contractor /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
Contractor /Consultant violates this provision of this Contract and the County
terminates the Contract for such breach.
SECTION 15
SOLE SOURCE GOVERNMENT CONTRACTS
If the Contractor 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 equal or exceed the
amount of $100,000, then the following provisions apply:
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A. Because of a presumption of impropriety between contributions to any campaign
and sole source government contracts, Contractor, on behalf of itself , any person who controls ten
percent or more of the shares of or interest in the Contractor, and the Contractor'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 Contractor 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.
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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.
SECTION 16
MANDATORY FEDERAL CONTRACT PROVISIONS
16.1 Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion (49 CFR
part 29). Consultant certifies, by submission of its proposal or acceptance of this Agreement, that
neither it nor its principals is presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participation in this transaction by any Federal department or
agency. It further agrees that by submitting its proposal that it will include this clause without
modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. Where
Consultant or any lower tier participant is unable to certify to this statement, it shall attach an
explanation to this Agreement or to each sub - consultant's contract.
16.2 Certification Regarding Foreign Trade Restrictions (49 CFR Part 30). Consultant or any sub -
consultant, by submission of an offer and /or execution of a contract certifies that it:
a. Is not owned or controlled by one or more citizens of a foreign country included in the
list of countries that discriminate against U.S. firms published by the Office of the United States
Trade Representative (USTR);
b. Has not knowingly entered into any contract or subcontract for this project with a person
that is a citizen or national of a foreign country on said list, or is owned or controlled directly or
indirectly by one or more citizens or nationals of a foreign country on said list;
c. Has not procured any product nor subcontracted for the supply of any product for use on
the project that is produced in a foreign country on said list.
Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance
with 49 CFR 30.17, no contract shall be awarded to Consultant or any sub - consultant who is unable
to certify to the above. If Consultant knowingly procures or subcontracts for the supply of any
product or service of a foreign country on said list for use on the project; the Federal Aviation
Administration may direct, through the County, cancellation of the contract at no cost to the
Government.
Further, Consultant agrees that, if awarded a contract resulting from this solicitation, it will
incorporate this provision for certification without modification in each contract and in all lower tier
subcontracts. Consultant may rely upon the certification of a prospective sub - consultant unless it
has knowledge that the certification is erroneous.
Consultant shall provide immediate written notice to County if Consultant learns that its
certification or that of a sub - consultant was erroneous when submitted or has become erroneous by
reason of changed circumstances. The sub - consultant agrees to provide immediate written notice to
Consultant, if at any time it learns that its certification was erroneous by reason of changed
circumstance.
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This certification is a material representation of fact upon which reliance was placed when making
the award. If it is later determined that Consultant or any sub - consultant knowingly rendered an
erroneous certification, the Federal Aviation Administration may direct, through the County, a
cancellation of the contract or subcontract for default at no cost to the Government.
Nothing contained in the foregoing shall be construed to require establishment of a system of
records in order to render, in good faith, the certification required by this provision. The knowledge
and information of Consultant is not required to exceed that which is normally possessed by a
prudent person in the ordinary course of business dealings.
This certification concerns a matter within the jurisdiction of an agency of the United States of
America and the making of a false, fictitious, or fraudulent certification may render the maker
subject to prosecution under Title 18 U.S.C. 1001.
16.3 Veterans Preference. In the employment of labor (except in executive, administrative, and
supervisory positions), preference shall be given to veterans of the Vietnam era and disabled
veterans as defined in Section 515(c)(1) and(2) of the Airport and Airway Improvement Act of 1982.
However, this preference shall apply only where the individuals are available and qualified to
perform the work to which the employment relates.
16.4 Breach of Contract terms. Any violation or breach of the terms of this Agreement on the part
of Consultant or their sub - consultants may result in the suspension or termination of this
Agreement or such other action that may be necessary to enforce the rights of the parties of this
agreement. The duties and obligations imposed by this Agreement and the rights and remedies
available there under shall be in addition to and not a limitation of any duties, obligations, rights and
remedies otherwise imposed or available by law. (49 CFR part 18).
16.5 Access to Records and Reports. Consultant shall maintain an acceptable cost accounting
system. Consultant agrees to provide County, the Federal Aviation Administration and the
Comptroller General of the United States or any of their duly authorized representatives access to
any books, documents, papers, and records of the Consultant which are directly pertinent to the
specific contract for the purposes of making an audit, examination, excerpts and transcriptions.
Consultant agrees to maintain all books, records and reports required under this contract for a
period of not less than three years after final payment is made and all other pending matters are
closed. (49 CFR Part 18.36(i)).
16.6 Right to Inventions. All rights to inventions and materials generated under this Agreement are
subject to regulations issued by the FAA and the Federal grant under which this Agreement is
executed. Information regarding these rights is available from the FAA and County. (49 CFR Part
18.36(i)(8)).
16.7 Airport and Airway Improvement Act of 1982, Section 520- general Civil Rights Provisions.
Consultant assures that it will comply with pertinent statutes, Executive orders and such rules as are
promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex,
age, or handicap be excluded from participating in any activity conducted with or benefiting from
Federal assistance. The provision obligates the tenant /concessionaire /lessee or its transferee for the
period during which Federal assistance is extended to the airport program, except where Federal
assistance is to provide, or is in the form of personal property or real property or interest therein or
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structures or improvements thereon. In these cases the provision obligates the party or any
transferee for the longer of the following periods: (a) the period during which the property is used
by the airport sponsor or any transferee for a purpose for which Federal assistance is extended, or
for another purpose involving the provision of similar services or benefits or (b) the period during
which the airport sponsor or any transferee retains ownership or possession of the property. In the
case of contractors, this provision binds the contractors from the bid solicitation period through
completion of the contract. This provision is in addition to that required of Title VI of the Civil
Rights Act of 1964.
16.8 Civil Rights Act of 1964, Title VI- Contractor Contractual Requirements (49 CFR Part 21).
During the performance of this Agreement, the Consultant, for itself, its assignees and successors in
interest (hereinafter referred to as the "Consultant ") agree as follows:
a. Compliance with Regulations. Consultant shall comply with the Regulations relative to
nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter,
"DOT ") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time
(hereinafter referred to as the Regulations), which are herein incorporated by reference and made a
part of this contract.
b. Nondiscrimination. Consultant with regard to the work performed by it during the
Agreement shall not discriminate on the grounds of race, color or national origin in the selection
and retention of sub - consultants, including procurements of materials and leases of equipment.
Consultant shall not participate either directly or indirectly in the discrimination prohibited by
Section 21.5 of the Regulations, including employment practices when the contract covers a
program set forth in Appendix B of the Regulations.
c. Solicitations for Subcontracts, Including Procurements of Materials and Equipment. In
all solicitations either by competitive bidding or negotiation made by Consultant for work to be
performed under a subcontract, including procurements of materials or leases of equipment, each
potential subconsultant or supplier shall be notified by Consultant of Consultant's obligations under
this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or
national origin.
d. Information and Reports. Consultant shall provide all information and reports required
by the Regulations or directives issued pursuant thereto and shall permit access to its books, records,
accounts, other sources of information, and its facilities as may be determined by the County or the
Federal Aviation Administration (FAA) to be pertinent to ascertain compliance with such
resolutions, orders, and instructions. Where any information required of Consultant is in the
exclusive possession of another who fails or refuses to furnish this information, Consultant shall so
certify to the County or the FAA, as appropriate, and shall set forth what efforts it has made to
obtain the information.
e. Sanctions for Noncompliance. In the event of Consultant's noncompliance with the
nondiscrimination provisions of this contract, the County shall impose such contract sanctions as it
or the FAA may determine to be appropriate, including, but not limited to:
i. Withholding of payments to Consultant under the contract until the contractor
complies, and /or
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ii. Cancellation, termination or suspension of the contract, in whole or in part.
f. Incorporation of Provisions. Consultant shall include the provisions of paragraphs 16.8
(a) through 16.8(e) in every subcontract, including procurements of materials and leases of
equipment, unless exempt by the Regulations or directives issued pursuant thereto. Consultant shall
take action with respect to any subcontract or procurement as the County or the FAA may direct as
a means of enforcing such provisions including sanctions for noncompliance.
16.9 Disadvantages Business Enterprises. Contract Assurance (49 CFR Part 26.13). Consultant or
their subconsultants shall not discriminate on the basis of race, color, national origin, or sex in the
performance of this contract. Consultant shall carry out applicable requirements of 49 CFR Part 26
in the award and administration of DOT assisted contracts. Failure by Consultant to carry out these
requirements is a material breach of this contract, which may result in the termination of this
contract or such other remedy, as the recipient deems appropriate.
16.10 Lobbying and Influencing Federal Employees (49 CFR Part 20, Appendix A)
a. No Federal appropriated funds shall be paid, by or on behalf of Consultant, to any person
for influencing or attempting to influence an officer of employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with the making of any Federal grant and the amendment or modification of any Federal
grant.
b. If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with any Federal Grant, Consultant shall complete and submit Standard Form -LLL,
"Disclosure of Lobby Activities ", in accordance with its instructions.
SECTION 17
MISCELLANEOUS
17.1 The Agreement is the entire Agreement between the parties and the Services. All previous or
contemporaneous agreements, representations, promises and conditions relating to Consultants
Services are superseded.
17. 2 Any unenforceable provision herein shall be amended to the extent necessary to make it
enforceable, if not possible, it shall be deleted and all other provisions shall remain in full force and
effect.
17.3 Consultant shall comply with all applicable federal, state and local rules, regulations governing
the services of the kind provided by Consultant under this Agreement. Consultant shall be solely
responsible for ensuring proper licensing and credentialing of those providing Services under this
Agreement.
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17.4 This Agreement may be executed in two or more counterparts, each of which may be executed
by one or more of the Parties hereto, but all of which, when delivered and taken together, shall
constitute but one Agreement binding upon all of the Parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the day and year
first written above.
COUNTY OF EAGL , STATE OF COLORADO
By: ___sm_
eith Montag, County M. • ager
CONSULTANT:
BURNS & McDONNELL ENGINEERING
COMP
By:
Mark A. ichtwardt, P.E.
Associate Vice President
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