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HomeMy WebLinkAboutC12-347 Populous Agreement AGREEMENT BETWEEN EAGLE COUNTY AND POPULOUS, INC. THIS AGREEMENT is made this /6, day of fw(eC , 2012, by and between Eagle County ( "County "), and, Populous, Inc. ( "Consu tant "), a Missouri corporation with a principal place of business at 300 Wyandotte, Suite 200, Kansas City, Missouri 64105. WHEREAS, County desires to develop a conceptual site plan for the Eagle River Center Expansion (the "Facility "); and WHEREAS, Consultant is authorized to do business in the State of Colorado, has experience and expertise necessary to provide said product and /or services to County; and WHEREAS, County and Consultant intend by this Agreement to set forth the scope of the responsibilities of Consultant in connection with the services 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, County and Consultant agree as follows: ARTICLE 1 WORK Consultant agrees to provide all services, labor, personnel and materials to perform and complete the services set forth in Exhibit A (hereinafter "Services" or "Work ") which is attached hereto and incorporated by this reference. Consultant will use its expertise and skill to perform the Services. In the event of any conflict between the contents of this Agreement and Exhibit A, this Agreement shall control. Services to be provided include conceptual site plans incorporating an enclosed warm up arena, up to 300 covered horse stalls, up to 30 RV hookup sites and efficient circulation to the existing Eagle River Center to allow for equestrian competitions of various disciplines and minimize participant/spectator circulation conflicts and a cost projection for the selected site plan. ARTICLE 2 — COUNTY'S REPRESENTATIVE The County's Facilities Management Department designee set forth in Article 12 hereof shall be Consultant's contact with respect to this Agreement and the performance of the Services. ARTICLE 3 — TERM OF AGREEMENT 3.1 This Agreement shall commence upon execution of this Agreement by both parties, and, subject to the provisions of Article 11 hereof, shall continue in full force and effect until the Services are completed in accordance with the terms of this Agreement. 3.2 This Agreement may be modified and the scope of Services may be changed upon a written amendment to this Agreement signed by both parties. 1 ARTICLE 4 — COMPENSATION 4.1 For the Services to be provided hereunder, subject to Article 4.4 and Article 11 hereof, County will pay Consultant the amounts provided in Exhibit "A." The maximum amount of compensation under this Agreement shall not exceed twenty nine thousand dollars ($29,000) without an amendment to the Agreement signed by both parties. 4.2 Payment will be made for Services performed in accordance with the terms of this Agreement within thirty (30) days of receipt of a proper and accurate invoice from Consultant respecting the 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. 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. 4.4 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to the Consultant in excess of the amount for any Services done without the written approval in accordance with a budget adopted by the Board in accordance with provisions of the Colorado Revised Statutes. Moreover, the parties agree that, as set forth in Article 7.3, the County is a governmental entity and that all obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. 4.5 The signatories to this Agreement aver to their knowledge, no employee of the County has any personal or beneficial interest whatsoever in the service or property described in this Agreement. The Consultant has no interest and shall not acquire any interest, direct or indirect, that would conflict in any matter or degree with the performance of Consultant's services and Consultant shall not employ any person having such known interests. ARTICLE 5— CONSULTANT'S REPRESENTATIONS In order to induce County to enter into this Agreement, Consultant makes the following representations: 5.1 Consultant has familiarized itself with the nature and extent of the Services to be provided hereunder, the Facility, and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Services. 5.2 Consultant will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. 5.3 To the extent possible, Consultant has correlated the results of all such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this 2 Agreement. 5.4 To the extent possible, Consultant, has given County written notice of all conflicts, errors, or discrepancies that he has discovered in the Agreement. 5.5 Consultant will be responsible for provision of the Services and shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to Equestrian Design Services. Further, in rendering the Services, Consultant shall comply with the highest standards of customer service to the public. Consultant shall provide appropriate supervision of its employees so that the Services are performed in accordance with this Agreement. 5.6 Consultant acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Consultant. Consultant shall not enter into any sub - consultant or sub - consultant agreements for the performance of any of the Services or without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to perform the Work and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned. Consultant shall be solely responsible for any Work performed by a sub - consultant or sub - consultant and shall require each sub - consultant or sub - consultant, as approved by County and to the extent of the Services to be performed by the sub - consultant or sub - consultant, to be bound to Consultant by the terms of this Agreement, and to assume toward Consultant all the obligations and responsibilities which Consultant, by this Agreement, assumes toward County. ARTICLE 6 — ENTIRE AGREEMENT This Agreement represents the entire Agreement between the parties hereto. There are no Contract Documents other than this Agreement and Exhibits A and B. The Agreement may only be altered, amended, or repealed in writing signed by both parties. ARTICLE 7 — MISCELLANEOUS 7.1 No assignment by a party hereto of any rights under, or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound, specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 7.2 County and Consultant each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in this Agreement. 3 7.3 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 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). 7.4 Provision Mandated by C.R.S. § 8- 17.5 -101 et seq. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES 7.4.1 If Consultant has any employees or subconsultants, 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 Services under this Contract. 7.4.2 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 subconsultant that fails to certify to the Consultant that the subconsultant shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 7.4.3 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: / /www.dhs.gov /xprevprot/programs /gc 1185221678150.shtm 7.4.4 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. 7.4.5 If the Consultant obtains actual knowledge that a subconsultant 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 subconsultant and the County within three days that the Consultant has actual knowledge that the subconsultant is employing or contracting with an illegal alien; and 4 (ii) Terminate the subcontract with the subconsultant if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (D) the subconsultant does not stop employing or contracting with the illegal alien; except that the Consultant shall not terminate the contract with the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with an illegal alien. 7.4.6 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). 7.4.7 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. 7.4.8 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. 7.5 The Consultant, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) to the extent applicable shall comply with the provisions of C.R.S. 24- 76.5 -101 et. seq., and (c) has produced one form of identification required by C.R.S. 24- 76.5 -103 prior to the effective date of this Agreement. 7.6 Invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision was omitted. ARTICLE 8 - JURISDICTION AND VENUE: 8.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado 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 In the event of litigation between the parties hereto regarding the interpretation of this Agreement, or the obligations, duties or rights of the parties hereunder, or if suit otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or specific performance, then and in such events, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. 5 • ARTICLE 9 - INDEMNIFICATION: The Consultant shall indemnify and hold harmless County and any of its officers, agents and employees against any damages or liabilities for which County or any of its officers, agents, or employees may become subject to, to the extent as any such losses, claims, damages or liabilities arise out of, directly or indirectly, any willful misconduct or negligent act, error or omission by Consultant or any of its subconsultants hereunder; and Consultant shall reimburse County for any and all attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action to the extent caused by any willful misconduct or negligent act, error or omission of Consultant or any of its subconsultants. This indemnification shall not apply to claims by third parties against the County to the extent that the County is solely liable to such third party for such claims without regard to the involvement of the Consultant. ARTICLE 10 - OWNERSHIP OF DOCUMENTS AND MATERIALS: All documents (including electronic files) and materials that are obtained during, purchased or prepared in the performance of the Services shall, upon payment in full to Consultant for its Services, become the property of the County and, provided County is not breach of its payment obligations, are to be delivered to County before final payment is made to Consultant or upon earlier termination of this Agreement. ARTICLE 11 - TERMINATION: County may terminate this Agreement, in whole or in part, for any reason, at any time, with or without cause. Any such termination shall be effected by delivery to Consultant of a written notice of termination specifying the date upon which termination becomes effective. In such event, Consultant shall be compensated for all Services completed in accordance with the terms of this Agreement up to the date of termination for such Services. ARTICLE 12 — NOTICE 12.1 Any notice required under this Agreement shall be personally delivered, mailed in the United States mail, first class postage prepaid, or sent via facsimile provided an original is also promptly delivered to the appropriate party at the following addresses: The County: Eagle County Facilities Management P.O. Box 850 Eagle, Colorado 81631 (970) 328 -8786 (p) (970) 328 -8899 (f) and a copy to: Eagle County Attorney P.O. Box 850 Eagle, Colorado 81631 6 I I • (970)328 -8685 (p) (970) 328 -8699 (f) The Consultant: Populous, Inc. Todd Gralla 2600 Van Buren, Suite 2623 Norman, Oklahoma 73072 (405) 310 -4322 (p) (405) 310 -4327 (f) 12.2 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. ARTICLE 13 — INDEPENDENT CONSULTANT It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship between County and Consultant or County and Consultant's employees. Consultant and its employees shall be, and shall perform as, independent consultants. No officer, agent, subconsultant, employee, or servant of Consultant shall be, or shall be deemed to be, the employee, agent or servant of County. Consultant shall be solely and entirely responsible for the means and methods to carry out the Services under this Agreement and for Consultant's acts and for the acts of its officers, agents, employees, and servants during the performance of this Agreement. Neither Consultant nor its officers, agents, subconsultants, employees or servants may represent, act, purport to act or be deemed the agent, representative, employee or servant of County. ARTICLE 14 — INSURANCE REQUIREMENTS 14.1 At all times during the term of this Agreement, Consultant shall maintain insurance on its own behalf in the following minimum amounts: 14.1.1 Workmen's Compensation, disability benefits, and other similar employee benefit acts, with coverage and in amounts as required by the laws of the State of Colorado. 14.1.2 Comprehensive Automobile Insurance shall be carried in the amount of $1,000,000 for bodily injury and $1,000,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be Comprehensive General and Automobile Bodily Injury and Property Damage form of policy. 7 14.1.3 Comprehensive liability and property damage insurance issued to and covering Consultant and any subconsultant with respect to all Work performed under this Agreement and shall also name County as an additional insured, in the following minimum amounts: Bodily Injury Liability: Each Person: $1,000,000 Each Accident or Occurrence: $1,000,000 Property Damage Liability: Each Accident or Occurrence: $1,000,000 14.2 Consultant shall purchase and maintain such insurance as required above and the certificate of insurance is attached hereto as Exhibit B. / /SIGNATURE PAGE TO FOLLOW // 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, by its :.and o ' C >00'• t missioners B //41. Peter F. Runyon, Chairman ATTEST: Q t Cler to the Board 'prat /. CONSULTANT: POPULOUS, IN By: 41 : • Title: AW • , CONSULTANT IS REQUIRED TO HAVE ITS SIGNATURE NOTARIZED STATE OF vk-IGt loh ) ss. COUNTY OF .e ( ) Th foregoing instrument was acknowledgpd before me by Tcvdd &rout 1 C — , of rriOwio �5 , j nc.. this 2 day of 034v6(4.- , 2012. My commission expires: l 130 I IS @u€J i �� Notary Public 0 ° 11008991 It at EXP 913011 0° 1 \C),,41 r 4OFOK�P 9