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HomeMy WebLinkAboutC12-355 Rare Earth Science Agreement AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND RARE EARTH SCIENCE, LLC FOR PRESENT CONDITIONS REPORT FOR DUCK POND OPEN SPACE PROPERTY THIS AGREEMENT ( "Agreement "), dated this 11 day of October, 2012 is between Eagle County, Colorado, ( "County ") and Rare Earth Science, LLC ( "Contractor ") with an address of Post Office Box 1245, Paonia, CO 81428. RECITALS WHEREAS, County desires to protect the Duck Pond Open Space located at 6024 US Highway, Gypsum, Colorado by conveying a conservation easement to the Eagle Valley Land Trust ( "Project'); and WHEREAS, Eagle Valley land Trust requires a present conditions report before it will accept, monitor and enforce a conservation easement; and WHEREAS, Contractor is authorized to do business in the State of Colorado and has experience and expertise in the preparation of present conditions reports; and WHEREAS, County and Contractor intend by this Agreement to set forth the scope of the responsibilities of Contractor in connection with the Project and the terms and conditions to govern the relationship between Contractor and County in connection with this Agreement. AGREEMENT NOW, THEREFORE, based upon the foregoing recitals and the consideration set forth herein, Eagle County and Contractor agree as follows: 1. SCOPE OF WORK The following will collectively be referred to as the "Work" or "Services ": A. Contractor agrees to furnish all services, labor, personnel and materials necessary to perform and complete the Work identified on Exhibit A which is attached hereto and incorporated herein by reference including preparation of a present conditions report for the Project. 1 2. CONTRACTOR'S REPRESENTATIONS A. Contractor has familiarized itself with the nature and extent of the Work, the contract documents, 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. B. Contractor shall be responsible for the completeness and accuracy of the Work, and shall correct, at its sole expense, all errors and omissions therein. The fact that County has accepted or approved the Work shall not relieve the Contractor of any of its responsibilities. Contractor shall perform the work in a skillful, professional and competent manner in accordance with the standard of care, skill and diligence applicable to contractors, with respect to similar work, in this area at this time. C. Contractor represents and warrants that the Work shall comply with any and all applicable laws, codes, rules and regulations. In the event the Work is to occur on property owned by third parties, federal, state or local governmental entities, or a public utility, the Contractor agrees to comply with any additional terms and conditions required by applicable laws, codes, rules and regulations. E. Contractor agrees that Contractor will not enter into any contracts, professional service agreements or consulting arrangements with third parties that will conflict in any manner with the Work to be provided under this Agreement. F. Contractor agrees to perform the Work in an expeditious manner, within the sound exercise of its judgment and professional standards. Time is of the Essence with respect to this Agreement. By executing this Agreement, Contractor confirms that the time limitations set forth herein are reasonable for performance of the Work. The Work will be completed no later than December 31, 2013. 3. COMPENSATION A. County shall pay Contractor three thousand two hundred dollars ($3,200) as compensation for the performance of the Work which compensation represents a flat fee for the Work. B. Payment shall be made within thirty days of receipt of an invoice provided that the Work and invoices are complete and insurance certificates are current and on file with County. C. 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 Contractor in respect of any period after December 31, 2012 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 2 i Statutes, the Local Government Budget Law (C.R.S. §29 -1 -101 et.seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 4. COMMENCEMENT AND COMPLETION OF THE WORK Contractor shall commence the Work promptly after execution of this Agreement by both parties and shall timely complete the Work as directed by December 31, 2013. 5. ADDITIONAL WORK Any additional work not identified herein, shall be performed by Contractor only after written approval of County. Failure of Contractor to obtain written authorization and acknowledgement by County for any additional work shall result in non - payment for any such additional work. Also, County by written to notice to Contractor may make any reasonable reductions to the scope of Work and the compensation payable to Contractor shall be reduced in a fair and reasonable amount on account thereof. 6. ASSIGNMENT AND SUB - CONTRACTORS Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any sub- contractor agreements for the performance of any of the Work or additional work without the County's prior 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 the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each sub- contractor, as approved by County and to the extent of the Work to be performed by sub- contractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any sub - contractor hired by Contractor and Contractor shall cooperate in such process. 7. INDEMNIFICATION The Contractor 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 or 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 Contractor or any subcontractor hereunder; and Contractor shall reimburse County for any and all attorney fees, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. 8. INSURANCE Unless otherwise agreed to in writing by County, Contractor agrees to provide and maintain at Contractor's sole cost and expense, the following insurance coverages: 3 l A. Workers' Compensation with policy limits as required by law, and Employers Liability Coverage, with policy limits of $1,000,000 each accident for Bodily Injury by Accident; $1,000,000 each employee for Bodily Injury by Disease; and $1,000,000 policy limit for Bodily Injury by Disease. B. Commercial Auto Coverage with limits of not less than $1,000,000 each accident combined Bodily Injury and Property Damage Liability insurance, including coverage for owned, hired and non -owned vehicles. C. Commercial General Liability with limits of liability not less than $1,000,000 per occurrence, $1,000,000 for bodily injury and property damage liability; $1,000,000 for personal injury and $1,000,000 in annual aggregate limits. D. Contractor shall name Eagle County as an additional insured on the commercial auto coverage and commercial general liability insurance identified above. E. Contractor shall maintain the foregoing coverage in effect until the Work is completed and all applicable statutes of limitation have run. All policies must contain an endorsement affording an unqualified thirty days' notice of cancellation to County in the event of cancellation of coverage. 9. ENFORCEMENT REMEDIES A. The Contractor's obligations hereunder shall survive termination of the Agreement. B. County and Contractor 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, the Contractor commits 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. 10. TERMINATION County may terminate this Agreement, with or without cause, upon seven days written notice to Contractor. County shall be responsible for the cost of Work satisfactorily performed prior to such notice. 11. 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 Contractor and their respective successors and 4 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 Contractor 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, in whole or in part only by written agreement duly authorized and executed by both County and Contractor. This Agreement represents the full and complete understanding of County and Contractor and supersedes any prior agreements, discussions, negotiations, representations or understandings of County and Contractor 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. Nothing herein shall be construed to create a partnership, employer /employee relationship between the parties hereto or other relationship between the parties other than independent contracting parties. 12. 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: Contractor: Toby Sprunk, Open Space Director Dawn Reeder Eagle County Rare Earth Science, LLC P.O. Box 850 P.O. Box 1245 500 Broadway Paonia, CO 81428 Eagle, Colorado 81631 (970) 537 -8445 (970) 328 -8698 (p) 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. 13. PROVISION MANDATED BY HOUSE BILL 1343: PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES 5 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:// www .dhs.gov /xprevprot/programs /gc 1185221678150.shtm 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 (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 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. 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 6 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. IN WITNESS WHEREOF, COUNTY and CONTRACTOR have executed this Agreement on the day and year first written above. COUNTY OF EAGLE, STATE OF COLORADO BY: iI. _._— Keith Montag, County M., ager RARE ! .. ,ENCE, LLC d r Lrf BY: i awn Reeder STATE OF COLORADO ) .GA- ) SS. COUNTY OF EAGLE ) The foregping instrument was acknowledged before me by Jam/ 1 1`6.r�h , this /6 day of c=he r , 2012 By Dawn Reeder of Rare Earth Science, LLC. My commission expires: f /) 0/3 ,t C � � a Notary Public ; JUD/ L FORTS . - ; � f ig •• .•43r /�� gy p. 7 Exhibit A Scope of Services Present Condition Documentation includes 1. Field visit to the property to map improvements and important features of the property, take representative photographs, and collect observations about the property's condition and existing conservation values; 2. An interview with the property owner or manager about the history and management of the property; and 3. Review of published maps, literature, and databases for information relevant to characterizing baseline conditions and conservation values of the property 4. The resulting document will conform to requirements of the Eagle Valley Land Trust. 5. The deliverables will include a Draft Present Conditions Report and a Final Present Conditions Report. 8