HomeMy WebLinkAboutC12-160 Stolfus & Associates Agreement AGREEMENT BETWEEN
EAGLE COUNTY, COLORADO AND
STOLFUS & ASSOCIATES FOR
TRAFFIC ENGINEERING REVIEW SERVICES
THIS A ' EMENT Professional Services ( "Agreement ") is made and entered into effective
as of the f ` day of , 2012 by and between Stolfus and Associates, a Colorado
corporation (hereinafter "Consultant ") and Eagle County, Colorado a body corporate and politic
( "County ").
RECITALS
WHEREAS, County desires to hire a consultant to provide independent traffic engineering peer
reviews for the Wolcott PUD including reviews of the applicant' s traffic impact study; and
WHEREAS, Consultant represents that it is a corporation authorized to do business in Colorado
that has the professional experience and expertise to provide such consulting services; and
WHEREAS, Consultant and County intend by this Agreement to set forth the scope of the
responsibilities of the Consultant in connection with the Services (as defined below) and related
terms and conditions to govern the relationship between Consultant and County in connection with
the consulting services.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the following promises Consultant and
County agree as follows:
1) Services. Consultant agrees to furnish all services, labor, personnel and materials necessary to
perform and complete the services described in Exhibit A ("Services"). If no completion date is
specified in Exhibit A, Consultant agrees to furnish the Services in a timely and expeditious
manner consistent with the applicable professional standard of care. In the event of any conflict
or inconsistency between the terms and conditions set forth in Exhibit A and the terms and
conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall
prevail.
This Agreement shall commence on the date first written above and, subject to the provisions of
paragraph ten hereof, shall continue in full force and effect until the Services are satisfactorily
completed.
2) County shall compensate Consultant for the performance of the Services as set forth herein and
in Exhibit A ("Compensation"). The Compensation agreed to and set forth in Exhibit A shall be
paid by County in monthly progress payments equal to the percentage complete for each task
performed by Consultant and any out -of- pocket expenses are included in the fees estimated in
Exhibit A. All invoices shall include the percentage of completion by task with detail regarding
hours spent, tasks performed and who performed each task. An application for payment shall
cover a calendar month beginning on the 1 of the month and ending on the last day of the
month. An application for payment shall be submitted to County by Consultant by the 15 of
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the month following the month in which the Services are rendered and shall be accompanied by
invoices or other documentation as may be required by County, and such other documentation as
may be required by County. Consultant payment shall be paid within thirty days of receipt of an
invoice provided that all of Consultant's complete invoices and insurance certificates on file with
County are current and all Services have been satisfactorily performed. Original invoices with
acc mpanying support documentation should be forwarded to: Eva Wilson, Eagle County
En neer, Post Office Box 850, Eagle, CO 81631 by US Mail or electronically to
eva.wilson @eaglecounty.us. The compensation for the performance of Services described in
Exhibit A shall not exceed twenty thousand dollars ($20,000).
3) Ad 'tional Services. Any services in addition to the Services ( "Additional Services ") shall be
per f rmed by Consultant only upon the written request of County. Orders for Additional
Services shall be acknowledged by County and Consultant in writing, prior to any such work
identified as Additional Services is performed by Consultant. Failure by Consultant to obtain
written authorization and acknowledgement by County for Additional Services shall result in
nonpayment for any such Additional Services or work performed. Except as otherwise agreed
in Writing by Consultant and County, all Additional Services shall be subject to the terms and
con itions of this Agreement. County may also by written notice to Consultant make any
reas nable reductions to the scope of the Services and the compensation payable to Consultant
shah be reduced in a fair and reasonable amount on account thereof.
4) Ins ance. Unless otherwise agreed to in writing by County, Consultant agrees to provide and
ma tain, at Consultant's sole cost and expense, and to require its subcontractor to maintain the
foil wing insurance coverage:
a) Types of Insurance.
i) Workers' Compensation as required by law.
ii) Consultant shall provide auto coverage through his personal policy.
ii) General Liability Coverage with limits of liability not less than $1,000,000 per
occurrence; $1,000,000 for bodily injury and property damage and $1,000,000 aggregate
limits.
ii') Professional Liability Insurance with limits of liability of not less than $1,000,000 per
claim in the annual aggregate.
b) ther Requirements.
i Consultant shall maintain the foregoing coverage in effect until the Services and
Additional Services are completed.
iI) All policies must be written by insurance companies whose rating in the most recent
Best's rating guide is not less than A- (VII).
iji) Certificates of Insurance with the required endorsements evidencing the coverage must
be delivered to County prior to commencement of any Services under this Agreement
and must be provided on an annual basis commencing on the first (1s anniversary of the
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policy year and continuing thereafter, or at any time within fifteen (15) days after request
therefor by County or an additional insured. Notwithstanding any other provision hereof,
Consultant shall provide County a complete copy of any policy of insurance required
hereunder within five (5) business days of a written request from County, and hereby
authorizes Consultant's brokers, without further notice to or authorization by Consultant,
to immediately comply with any written request of County for a complete copy of any
policy required hereunder.
iv) If Consultant fails to secure and maintain the insurance required by this Agreement and
provide satisfactory evidence thereof to County, County shall be entitled to immediately
terminate this Agreement.
v) Consultant's insurance shall be primary and non - contributory to any insurance held by
County.
5) Indemnification. To the fullest extent permitted by law, Consultant agrees to indemnify, defend
and hold harmless Eagle County, their officers, directors, and employees, (collectively, "County
Indemnitees ") from and against any and all claims, demands, losses, liabilities, damages, costs,
expenses (including, but not limited to, reasonable attorneys' fees and costs) ( "Claims ") to the
extent caused by or attributable to the negligent performance or non - performance of the Services
(including any Additional Services) provided by Consultant and its employees, sub - consultants
and/or suppliers, and/or any negligent or otherwise wrongful statement, act or omissions of
Consultant or any person or entity under Consultant's control;. The indemnity and hold
harmless provisions of this Agreement shall survive expiration or termination hereof. County
and Consultants hereby certify and agree that the indemnity and hold harmless provisions of this
Agreement have been freely and mutually negotiated. County and Consultant agree that
notwithstanding anything to the contrary contained in this agreement, that the total aggregate
liability of Consultant to Eagle County shall not exceed the total compensation received by
Consultant under this Agreement.
6) Ownership of Documents. All documents prepared by Consultant or Consultant's subcontractor in
connection with Consultant's performance under this Agreement shall become the property of
County and Consultant or Consultant's subcontractor shall execute written assignments to County
of all rights (including common law, statutory, and other rights, including copyrights) to the same as
County shall from time to time request. For purposes of this paragraph, the term "documents" shall
mean and include all surveys, reports, plans, studies, tape or other electronic recordings, drawings,
sketches, estimates, data sheets, maps and work sheets produced, or prepared by or for Consultant
(including any employee or subcontractor in connection with the performance of the Services and
Additional Services under this Agreement). Any and all unauthorized reuse of Consultants
Instruments of Service will be at the County's sole risk and without liability to the Consultant.
7) Notices. All notices or other communications made pursuant hereto shall be in writing and shall
be deemed properly delivered, given or served (i) when personally delivered, or (ii) two (2)
calendar days after being deposited in the United States mail, certified or registered, postage
prepaid, return receipt requested, (iii) when delivered by FedEx or other comparable courier
service, charges prepaid, to the parties at their respective addresses listed below their signatures,
or (iv) when sent via facsimile so long as the sending party can provide a facsimile machine or
other confirmation showing the date, time, and receiving facsimile number for the transmission.
Either party may change its address for the purposes of this paragraph by giving five (5) days
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prio written notice of such change to the other party.
County:
Eagle C unty Government
Attentiojn: Eva Wilson
500 Broadway
Post Office Box 850
Eagle, 00 81631
Telephojne: 970 - 328 -3560
Facsimile: 970 - 328 -8789
E -mail: va.wilson @eaglecounty.us
And a copy to:
Eagle County Attorney
500 Bro4dway
Post Oce Box 850
Eagle, GO 81631 .
Telephone: 970-328-8685
Facsimile: 970 - 328 -8699
Consultant:
Stolfus ti Associates, Inc.
Attentio : Elizabeth B. Stolfus
5690 DIC Boulevard, Suite 101 W
Greenwood Village, CO 80111
Telepho e: 303-221-2330
Facsimi -: 303 - 221 -2331
E -mail: . stolfusandassociates. com
8) Te ' ation. Either party may terminate this Agreement at any time and for any reason, with or
with tut cause, with seven (7) calendar days' prior written notice to the other party. On
termination of this Agreement, County shall pay to Consultant as payment in full for all labor,
work and services performed, all materials supplied, and expenses incurred by Consultant as
follows: (i) the agreed compensation for all Services and approved Additional Services
satis actorily performed by Consultant under this Agreement up to the effective date of
term nation. Concurrent with Consultant's receipt of such payment, Consultant shall sign and
deli -r to County true and complete copies of Consultant's work product. As used herein, the
"effe tive date of termination" shall be that date which is seven (7) calendar days after receipt of
the n I tice of termination.
9) Ven e and Jurisdiction. Any and all claims, disputes or controversies related to this Agreement,
or br ach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall
be the sole and exclusive forum for such litigation.
10) General Conditions.
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a. Consultant shall be responsible for the completeness and accuracy of the Services and any
Additional Services, including all supporting data and other documents prepared or compiled in
performance of the Services or Additional Services, and shall correct, at its sole expense, all
significant errors and omissions therein. The fact that the County has accepted or approved the
Services or Additional Services shall not relieve Consultant of any of its responsibilities.
Consultant shall perform the Services and Additional 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. Consultant represents and
warrants that it has the expertise and personnel necessary to properly perform the Services.
b. Each of the Exhibits referred to herein and attached hereto is an integral part of this
Agreement and is incorporated herein by reference.
c. Consultant agrees to work in an expeditious manner, within the sound exercise of its
judgment and professional standards, in the performance of this Agreement. Time is of the
essence with respect to this Agreement. By executing the Agreement, Consultant confirms that
the time limitations set forth herein are reasonable period(s) for performing the Services.
d. This Agreement shall be construed and interpreted under and shall be governed and enforced
according to the domestic laws of the State of Colorado (without reference to the doctrine of
conflicts of law).
e. Consultant represents that at all times in the performance of the Services Consultant shall
comply with applicable laws, codes, rules and regulations.
f. Consultant and its employees are not entitled to workers' compensation benefits through the
County. Consultant is solely responsible for necessary and adequate workers' compensation
insurance and shall be responsible for withholding and paying all federal and state taxes. The
Consultant and its employees are not entitled to unemployment insurance benefits unless
unemployment compensation coverage is provided by an entity other than County. The
Consultant hereby acknowledges full and complete liability for and shall timely pay all taxes
imposed by any federal, state or local taxing authority on all payrolls and compensation of its
employees and subcontractors and any other taxes, fees and charges levied against Consultant on
account of this Agreement.
g. This Agreement constitutes an agreement for the performance of work and services by
Consultant as an independent contractor and not as an employee of County. Nothing contained
in this Agreement shall be deemed to create a relationship of employer - employee, master-
servant, partnership, joint venture or any other relationship between County and Consultant
except that of independent contractor. Consultant shall have no authority to bind County or to
approve any Additional Services, unless specifically approved by County in writing.
h. This Agreement contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements or understandings between the parties with
respect thereto.
i. This Agreement may not be amended or supplemented, nor may any obligations hereunder
be waived, except by a written instrument signed by the party to be charged. Notwithstanding
the foregoing sentence, Consultant agrees to make such revisions to this Agreement as may be
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reas Dnably required by County, and Consultant agrees to comply with customary requirements
of construction and permanent lenders which may be imposed including, but not limited to,
execution of a subordination agreement(s).
j. 's Agreement and the covenants contained herein shall be binding upon and shall inure to
the enefit of the parties hereto and their respective permitted assigns and successors -in- interest.
k. o failure or delay by either party in the exercise of any right given to such party hereunder
shall constitute a waiver thereof. No waiver of any breach of any agreement or provision
contjained herein shall be deemed a waiver of any preceding or succeeding breach thereof or of
any ether agreement or provision contained herein.
1. Whenever the context hereof shall so require, the singular shall include the plural, the male
gen4er shall include the female and the neuter, and vice versa.
m. The invalidity, illegality or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision hereof.
n. onsultant shall maintain for a minimum of three years, adequate financial and other records
for reporting to County. Consultant shall be subject to financial audit by federal, state or county
audi ors 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.
Consultant shall fully cooperate with County representatives during such audit or inspections.
o. Nothing contained in this Agreement shall create a contractual relationship with or a cause of
actin in favor of a third party against either County or the Consultant. The Consultant's
serv�ces under this Agreement are being performed solely for the County's benefit, and no other
part* or entity shall have any claim against the Consultant or the County because of this
AgrOementor the performance or nonperformance of services hereunder.
p. I is intended by the parties to this Agreement that the Consultant's services in connection
with the Project shall not subject the Consultant's individual employees, officers or directors to
any personal legal exposure for the risks associated with this Project. Therefore, and
notwithstanding anything to the contrary contained herein, the Client agrees that as the Client's
sole and exclusive remedy, any claim, demand or suit shall be directed and /or asserted only
against the Consultant, a Colorado corporation, and not against any of the Consultant's individual
employees, officers or directors.
q. 11xcept as provided in Section 13 of this Agreement, neither the Client nor the Consultant,
their respective officers, directors, partners, employees, contractors or subconsultants shall be
liable to the other or shall make any claim for any incidental, indirect or consequential damages
arising out of or connected in any way to the Project or to this Agreement. This mutual waiver
of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of
busi ess, loss of income, loss of reputation and any other consequential damages that either party
may have incurred from any cause of action including negligences, strict liability, breach of
cont ct and breach of strict or implied warranty.
13) Prohibitions on Government Contracts. If Consultant has any employees or subcontractors,
Consultant shall comply with C.R.S. § 8 -17.5 -101, et seq., regarding Illegal Aliens — Public
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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 Services or Additional Services under this Contract.
A. Consultant shall not:
(i) Knowingly employ or contract with an illegal alien to perform Services or
Additional Services under this contract for services; or
(ii) Enter into a contract with a subcontractor that fails to certify to 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 Services or Additional Services 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:// www .dhs.gov /xprevprot/programs /gc 1185221678150.shtm
C. 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 Consultant obtains actual knowledge that a subcontractor performing work under
the public contract for services knowingly employs or contracts with an illegal alien,
Consultant shall be required to:
(i) Notify the subcontractor and County within three days that 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 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. 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 Consultant violates these prohibitions, 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, Consultant shall be liable for actual and consequential
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damages to County as required by law.
G. County will notify the office of the Colorado Secretary of State if Consultant violates
this provision of this Contract and ECHDA terminates the Contract for such breach.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the b day of IA t ,
2012.
COUNTY OF EAGLE, STATE OF
COLORADO, by the Eagle County Manager on behalf
of the Board of C • - ty • • sioners
B
Keith Montag
Eagle County Manager
STOLFUS & ASSOCIATES, INC.
By: /— r .�. ,+► ?e
E izabeth B. S. fus •
President
STATE OF eittOr ad- o )
) ss.
COUNTY OF0„g3.e, )
The foregoing instrument was acknowledged before me by t 1 i e B. SD\Fus, this 1
4 '
day of M , 2012.
My commission expires:
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Notary blic "!� � '•�
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My Commission E,psss 11/13+2O14
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EXHIBIT
t „ I A
as •' ates
April 24, 2012
Ms. Eva Wilson, P.E.
Eagle County Engineer
P.O. Box 850
Eagle, CO 81631
Re: Proposal for Traffic Engineering Review Services
Wolcott PUD
Dear Eva:
Stolfus & Associates, Inc. is pleased to submit this proposal to provide Eagle County with traffic
engineering review services for the Wolcott PUD. The services are being requested in order to
support the County's evaluation of the transportation - related aspects of the Wolcott PUD.
It is our understanding that the Sketch Plan has been completed for the PUD and that the
services will likely be required throughout the upcoming Preliminary Plan process.
SCOPE OF SERVICES
All services will be provided on an as- needed basis under the County's direction. The precise
nature of the services will depend upon the County's needs; however, the following types of
services are anticipated:
Traffic Study Reviews
Stolfus & Associates, Inc. will review and provide comment on the scope, methodology, analysis
and findings of the Wolcott PUD traffic impact study. The purpose of this review will be to assist
the County in evaluating traffic impacts and identifying appropriate mitigation.
Conditions of Approval
Stolfus & Associates, Inc. will assist the County in identifying conditions of approval based upon
project phasing, implementation, and regulatory considerations.
Project Meetings and Coordination
Stolfus & Associates, Inc. staff will attend meetings and /or participate in telephone conferences
as necessary throughout the duration of the services.
Deliverables, project planning, and scheduling will be coordinated with Eva Wilson.
Items Specifically Not Included
This proposal is limited to services provided by Stolfus & Associates, Inc. If the County
requests services that require Stolfus & Associates to retain a third -party consultant, the fee for
those services will be negotiated separately from this proposal. Examples of services for which
Stolfus & Associates typically retains an outside consultant include field surveys, environmental
studies, geotechnical investigations, structural design, etc.
5690 DTC Boulevard, Suite 101W • Greenwood Village, CO 80111 • phone: 303 -221 -2330 • fax: 303- 221 -2331 • www.stolfusandassociates.com
Ms. Eva Wilson
Octob r 28, 2011
Page
Schedule and Estimated Fee
Based on our current workload, Stolfus and Associates, Inc. can begin work on this project
immediately upon notice to proceed. All services will be provided on an as- needed basis with
the un4lerstanding that we will meet mutually - agreed to project schedules.
Stolfue & Associates, Inc. will provide these services on a Time and Materials basis with a "Not
to Exc ed" limit of $20,000.00 which we will not charge beyond without prior written approval.
All serices shall be provided at the direction of Eagle County.
All seNices will be provided at our standard hourly rates and direct expenses will be reimbursed
at cost, Our Standard Rates for 2012 are attached for your information.
Invoices for professional services rendered and expenses incurred will be prepared monthly.
Invoices will include a detailed description of meetings attended, work in progress and tasks
completed. Payment is expected within 30 days. After 30 days, unpaid invoices are subject to
a 1.5% service charge, compounded monthly.
Limitation of Liability
In rec nition of the relative risks and benefits of the project to Eagle County and Stolfus &
Associ tes, Inc., the risks have been allocated such that Eagle County agrees, to the fullest
extent ermitted by law, to limit the liability of Stolfus & Associates, Inc. to Eagle County for any
and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any
cause r causes, including attorneys' fees and costs and expert - witness fees and costs, so that
the tot I aggregate liability of Stolfus & Associates, Inc. to Eagle County shall not exceed the
total c mpensation received by Stolfus & Associates, Inc. under this Agreement. It is intended
that thie limitation apply to any and all liability or cause of action however alleged or arising,
unless otherwise prohibited by law.
Thank fou again for the opportunity to work together on this project. Please call me if you have
any qu stions.
Very T my Yours,
Accepted by:
STOL US & ASSOCIATES, INC.
if /. 9.
Matthew J. Brown, P.E.
Senior Transportation Engineer
Title /date
assfr
2012 STANDARD HOURLY RATES
Professional Services
Principal (Expert Witness)* $300 /hr
Principal $160 /hr
Senior Engineer $140 /hr
Engineer g $120 /hr
Transportation Specialist $115/hr
Design Engineer $ 95 /hr
Drafter $ 75 /hr
Administrative $ 55 /hr
*includes deposition testimony, courtroom appearances, transcript review, etc.
Outside Consultants at cost
Other Direct Costs
Mileage at Standard Federal Rate
Outside reproduction at cost
Other expenses at cost
CD Production $5.00 /per disk
In -House Reproduction (B &W) $0.10 /per print
In -House Reproduction (Color) $0.50 /per print
Large Format Plots $1.00 /per square foot
Foam Board $2.50 /per square foot
