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HomeMy WebLinkAboutC12-183 Davis Partnership Architects Amendment r ' AMENDMENT TO AGREEMENT BETWEEN DAVIS PARTNERSHIP ARCHITECTS AND EAGLE COUNTY FOR THE DESIGN OF THE RELOCATED EAGLE COUNTY SPORTS FIELD COMPLEX THIS AMENDMENT to Agreement between Davis Partnership Architects and Eagle County for ' )1 ,- (4 — Design of the Relocated Eagle County Sports Complex ("Amendment") is entered into this ay of Mirm X2012 by Davis Partnership Architects, P.C. ("Consultant") and Eagle County, Colorado, a body I corporate and politic by and through its Board of County Commissioners ( "County"). RECITALS WHEREAS, the parties entered into an Agreement for Design of the Relocated Eagle County Sports Field Complex dated the 8th day of June, 2010 ( "Agreement "); and WHEREAS, Consultant and its sub - consultant, Marcin Engineering, LLC ( "Marcin "), have performed certain additional design and engineering services in connection with the relocation of the ball field complex; and WHEREAS, the parties wish to set forth the compensation for such additional design and engineering services which shall constitute final payment under the Agreement and this Amendment; and WHEREAS, Consultant and Marcin have separately executed an Acknowledgement, Waiver and Release in connection with services performed under the Agreement and this Amendment. AMENDMENT NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, County and Consultant agree as follows: 1. County shall pay as final payment for the services under the Agreement and this Amendment the fixed sum of $40,000 to Consultant. 2. Consultant and Marcin have delivered to County an Acknowledgment, Waiver and Release of any claims that Consultant and Marcin may have against County in connection with the services performed under the Agreement or this Amendment. 3. In the event of any inconsistency between the terms and conditions in the Agreement and this Amendment, the Agreement shall control. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the date first written above. )'CcJ • r - ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its o BOARD OF COUNTY COMMISS ! • ERS BY: , 4. /fi�i * BY f Clerk to the Board o 'County co 9 Peter F. Runyon, Chairma Commissioners DAVIS PA��R / ERSHIP ARCHITECTS, P.C. By: I� // L A. oore, Principal STATE OF col nR.A D� ) ) SS. COUNTY OF DiEt.lk/ak ) The foregoing instrument was acknowled '-d before me by Lynn A. Moore of Davis Partnership Architects, P.C. this 8OZr-i day of i i.X a '4� , 2012. My commission expires jeDvais t .�z i j2.AVU 19kti • COL:yy P i. ACKNOWLEDGMENT, WAIVER AND RELEASE This Acknowledgment, Waiver and Release ( "Release ") is made and entered into as of the 30th day of April, 2012, by Davis Partnership Architects, P.C.( "Davis ") and Marcin Engineering, LLC ( "Marcin "), for the benefit of Eagle County, Colorado, a body corporate and politic( "Eagle County "). Recitals A. Davis was retained by Eagle County to be the designer of record for an athletic complex known as Eagle County Ball Fields (the "Project "). B. Marcin provided certain engineering services as a subconsultant to Davis on the Project. C. Certain of the services provided by Davis, and by Marcin as subconsultant to Davis, were performed with the expectation that Eagle County would approve additional funding for the Project. D. Eagle County has approved an additional, final payment of $40,000 (the "Final Payment ") to compensate Davis and Marcin for work performed in connection with the Project, provided that Davis and Marcin execute and deliver this Release. AGREEMENT NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, Davis and Marcin agree as follows: 1. Final Payment. (a) Davis and Marcin agree that the Final Payment shall constitute full and final satisfaction of all claims that either of them has or may claim to have against Eagle County arising from or relating to the Project. In the event that Eagle County revives the Project, and Davis, Marcin or either of them provides future services in connection therewith, then Davis and /or Marcin shall be entitled only to the compensation payable under whatever agreements are in place at that time, and in no event shall either Davis nor Marcin be entitled to any further compensation for services or materials provided, or costs incurred, through and including the date of this Release. (b) Davis and Marcin agree that they shall split the Final Payment with $15,000 paid to Davis and $25,000 paid to Marcin. Eagle County may issue the Final Payment in separate checks or wire transfers to Davis and Marcin. If Eagle County issues the Final Payment in the form of a single check or wire transfer to Davis, then Davis will thereupon pay $25,000 to Marcin. In the unintended event that Eagle County would issue the full amount of the Final Payment directly to Marcin, then Marcin will thereupon pay $15,000, to Davis. 1013722.1 DPHUTC 04/18/1211: 40 AM 2. Termination of Services. Davis and Marcin acknowledge and agree that Davis' role as designer of the Project, and Marcin's role as a subconsultant to Davis on the Project, are hereby terminated, and that neither of them is authorized to provide any additional services in connection with the Project in the .absence of a future agreement with Eagle County. Nothing herein shall preclude Eagle County from contracting with Davis and/or Marcin in the future on the Project or on other unrelated matters. 3. Waiver and Release of Rights. Effective upon receipt of the Final Payment, Davis and Marcin hereby (a) release and discharge Eagle County and each other of, from and against any and all claims, demands and causes of action for payment for services or materials provided, or costs incurred, in connection with the Project through and including the date of this Release, and (b) waive, release and disclaim any rights, liens or other claims that either of them may have through and including the date of this Release against the Project, the real property on which the Project is intended to be constructed, and any bonds posted pursuant to the Colorado Public Works Act or otherwise for the benefit of persons providing labor, services or materials in connection with the Project. 4. Indemnity. Marcin hereby indemnifies Davis and holds Davis harmless from and against any and all claims, demands, causes of action, damages or losses arising from or relating to any attempt by Marcin, or any person acting by, through or under Marcin, to assert a claim against Eagle County, a lien against the Project, a claim or lien against any bond for the benefit of persons providing labor, services or materials for the Project, or otherwise to obtain additional compensation for labor or materials provided in connection with the Project. In addition, Marcin will reimburse Davis for all reasonable attorneys' and expenses that Davis incurs in connection with any such indemnified matter. 5. Scope of Release. This Release is intended to resolve solely those matters specifically provided for herein. By way of illustration but not limitation, this Release is not intended to resolve any claims that may arise in favor of either party to this Release in connection with any alleged errors, omissions, or professional liability issues that may arise in connection with the Project. 6. Construction. Each party acknowledges and agrees that it has had the opportunity to engage legal counsel to review this Release prior to executing the same. Accordingly, the parties agree that regardless of which party drafted the Release, no ambiguity hereunder shall be resolved on the basis of a presumption against the drafting party. 1013722.1 DPHUTC 04/18/1211 :40AM 2 IN WITNESS WHEREOF, the parties have caused this Release to be executed as of the date first written above. DAVIS PARTNERSHIP ARCHITECTS, P.C. By: • ar Name: L .. Moore, Principal MARCIN ENGINEERING, LLC, a. Colorado limited liability company By: Name: , z4j rn4 cis-t/ Title: fl1l Yfi6 g�z_... 1013722.1 DPHUTC 04 /18/12 11 :40 AM 3