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Home My WebLink AboutC14-017 W.R. Hopping and Company, Inc. Agreement AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN EAGLE COUNTY,COLORADO AND W.R.HOPPING AND COMPANY,INC. THIS AGREEMENT("Agreement")is effective as of the I 1 day of I;I rt a 2014 by and between W.R.Hopping and Company,Inc.,a Colorado corporation with a principal .lace of business at 5773 Shasta Circle,Littleton,Colorado 80123 (hereinafter"Consultant"or"Contractor")and Eagle County,Colorado,a body corpora:e and politic(hereinafter"County"). County and Consultant will hereinafter be referred to collectively as the"Parties." RECITALS WHEREAS,Eagle County desires to hire a professional appraisal firm to prepare summary appraisals for the purposes of evaluating the current valuations for assessment of four separate hotel properties known as The Pines Lodge at Beaver Creek,the Lodge at Vail,the Vail Cascade Resort and Spa and the Ritz- Carlton at Bachelor Gulch(hereinafter referred to as the"Hotels"),developing an independent opinion of value for each of the Hotels,preparing associated appraisal reports and, if necessary,providing litigation support before the Colorado Board of Assessment Appeals;and WHEREAS,Consultant is authorized to do business in the State of Colorado and has the time,skill, expertise,and experience necessary to provide the Services as defined below in paragraph 1 hereof;and WHEREAS,this Agreement shall govern the relationship between Consultant and County in connection with the Services. AGREEMENT NOW,THEREFORE, in consideration of the foregoing and the following promises Consultant and County agree as follows: 1. Services and Additional Services. a. Services. Consultant agrees to use its skill,expertise and experience to diligently provide all services, labor,personnel and materials necessary to develop and prepare four separate summary appraisal reports to determine the 2013 real estate market value of the Hotels using an appraisal date of June 30,2012("Services").The Services shall be performed in accordance with the provisions and conditions of this Agreement and in compliance with the Uniform Standards of Appraisal Practice and the requirements of Colorado law for valuation for assessment of real property. The Services will be performed without any predetermination of value for any of the Hotels and will not utilize any data occurring after June 30,2012. b. Additional Services. Consultant agrees to be reasonably available to assist with preparation for litigation,to perform third-party-appraisal review and to provide testimony as an expert witness before the Board of Assessment Appeals("Additional Services"),if deemed necessary by County. The Parties anticipate such Additional Services might be necessary in March and April,2014. The Parties agree that Consultant will be unavailable to provide Additional Services between March 21, 2014 and March 31,2014. c. Consultant agrees to furnish the Services in a timely and expeditious manner,and in no case will the final appraisal reports be completed later than February 24,2014,without an amendment to this agreement signed by both parties. Consultant also agrees to furnish any Additional Services,as may be requested by County, in a timely and expeditious manner. The Parties agree that the Eagle County Assessor's Office will assist in performance of the Services as follows: i, County will assist in the development of descriptive data and writing descriptive portions of th e report, including identification of the properties, legal descriptions, statements of ownership and ownership history,site and neighborhood data,the regional analysis and descriptions of improvements. ii. Consultant will review and sign all reports and be responsible for their content. d. By signing below Consultant represents that it has the expertise and personnel necessary to properly and timely perform the Services and Additional Services. e. Consultant agrees that it will not enter into any consulting or other arrangements with third parties that will conflict in any manner with the Services or Additional Services. 2. County's Representative. The Eagle County Attorney's designee shall be Consultant's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above,and subject to the provisions of paragraph 12 hereof,shall continue in full force and effect until the Services and Additional Services(as requested by County)are completed. 4. Extension or Modification. This Agreement may not be amended or supplemented,nor may any obligations hereunder be waived,except by agreement signed by both Parties.No additional services or work performed by Consultant shall be the basis for additional compensation unless and until Consultant has obtained written authorization and acknowledgement by County for such additional services in accordance with County's internal policies. 5. Compensation. County shall compensate Consultant for the performance of the Services in the amount of nineteen thousand dollars($19,000),plus all pre-approved out-of-pocket expenses, including mileage,lodging,and meals. For Additional Services,County shall pay Consultant two hundred seventy five dollars($275)per hour,plus all pre-approved out-of-pocket expenses,including mileage,lodging, and meals. The total compensation under this Agreement shall not exceed forty thousand dollars ($40,000)without a signed amendment to this Agreement. Consultant shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. 2 a. For the Services, ounty will pay Consultant a 50%retainer in the amount of nine thousand five hundred dollars($9,.00)upon execution of this Agreement by both Parties. Final payment will be made for Services satisfac l•rily completed in the amount of nine thousand five hundred dollars ($9,500)within thirty(30)days o receipt of final appraisal reports. Payment for Additional Services shall be made for services satisfac only completed,with a five thousand dollar($5,000)retainer to be paid if testimony is necessary and nitial fees associated with any such testimony being billed against the retainer. b. Consultant shall • ivide County with invoices for work performed including detail regarding the hours spent,tasks .: ormed,who performed each task and such other detail as County may request. c. Any out-of-pocke expenses will be reimbursed without any additional mark-up thereon and are included in the not to exc--d contract amount set forth above. Out-of-pocket expenses shall not include any payment of salaries, genuses or other compensation to personnel of Consultant. Consultant shall not be reimbursed for expen--s that are not preapproved unless specifically approved in writing by County. d. If,at any time du ng the term or after termination or expiration of this Agreement, County reasonably determines tha any payment made by County to Consultant was improper because the Services for which payment was ade were not performed as set forth in this Agreement,then upon written notice of such determinati on and request for reimbursement from County,Consultant shall forthwith return such payment(s) 1. County. Upon termination or expiration of this Agreement, unexpended funds advanced by C unty, if any,shall forthwith be returned to County. e. County will not ithhold any taxes from monies paid to the Consultant hereunder and Consultant agrees to be solely rest•nsible for the accurate reporting and payment of any taxes related to payments made pursuant to the to s of this Agreement. f. Notwithstanding : ything to the contrary contained in this Agreement,County shall have no obligations under this Agreem:nt after,nor shall any payments be made to Consultant in respect of any period after December 31 of any -ar,without an appropriation therefor by County in accordance with a budget adopted by the Board of C.unty Commissioners in compliance with Article 25,title 30 of the Colorado Revised Statutes,the • al Government Budget Law(C.R.S.29-1-101 et.seq.)and the TABOR Amendment(Colorado constitution,Article X, Sec.20). 6. Sub-consultants. Consul : t acknowledges that County has entered into this Agreement in reliance upon the particular repu ion and expertise of Consultant. Other than expressly provided herein, Consultant shall not enter into an sub-consultant agreements for the performance of any of the Services or additional services without Co nty's prior written consent,which may be withheld in County's sole discretion. County shall have the ight in its reasonable discretion to approve all personnel assigned to the subject Project during the perfo ce of this Agreement and no personnel to whom County has an objection, in its reasonable discre•on,shall be assigned to the Project. Consultant shall require each sub- 3 R consultant,as approved by Coun and to the extent of the Services to be performed by the sub- consultant,to be bound to Consul t by the terms of this Agreement,and to assume toward Consultant all the obligations and responsibil. ies which Consultant,by this Agreement,assumes toward County. County shall have the right(but nit the obligation)to enforce the provisions of this Agreement against any sub-consultant hired by Cons Rant and Consultant shall cooperate in such process.The Consultant shall be responsible for the acts a . omissions of its agents,employees and sub-consultants or sub- contractors. 7. Insurance. The Consul . t will maintain on his/her own behalf, general liability and automobile insurance, as well as unemployment and workman's compensation insurance and errors and omissions coverage,. necessary or required by Colorado law. 8. Indemnification. Consul . t shall not be deemed to assume any liability for intentional or negligent acts,errors,or omission of County or of any officer or employee thereof. Likewise,County, its officers and employees,shall n it be deemed to assume any liability for intentional or negligent acts, errors or omissions of Consultant .r by any officer or employee thereof. The Consultant shall indemnify and hold harmless County,and an of its officers,agents and employees against any losses,claims, damages or liabilities for which C.unty may become subject to insofar as any such losses,claims, damages or liabilities arise out of,directly or indirectly,Contractor's performance under this Agreement, or are based upon any performanc or nonperformance by Consultant or any of its sub-consultants hereunder. This indemnification -hall not apply to claims by third parties against the County to the extent that County is liable to such third • for such claims without regard to the involvement of the Consultant. This paragraph shall `urvive expiration or termination hereof. 9. Ownership of Documents All documents prepared by Consultant in connection with the Services shall become property of County. Consultant 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 p $•ses of this paragraph,the term"documents"shall mean and include all reports,plans,studies,tape or ether electronic recordings,drawings,sketches,estimates,data sheets, maps and work sheets produced, .r prepared by or for Consultant(including any employee or subconsultant in connection with he performance of the Services and additional services under this Agreement),but excludes confide tial data that may be kept or maintained by Consultant aside from Consultant's work under this Agr; ment.The Parties agree that reports to be provided under this Agreement will be provided to th= County electronically and that hard copies will be available at a cost of $100 per copy. 10. Notice. Any notice requi • by this Agreement shall be deemed properly delivered when(i) personally delivered,or(ii)when ailed in the United States mail,first class postage prepaid,or(iii) when delivered by FedEx or othe comparable courier service,charges prepaid,to the parties at their respective addresses listed below,or(iv)when sent via facsimile so long as the sending party can provide facsimile machine or other confi ation showing the date,time and receiving facsimile number for the transmission,or(v)when transmi ed via e-mail with confirmation of receipt. Either party may change its address for purposes of this pars :ph by giving five(5)days prior written notice of such change to the other party. 4 COUNTY: Eagle County,Colorado Attention:Christina Hooper 500 Broadway Post Office Box 850 Eagle,CO 81631 Telephone:970-328-8685 Facsimile:970-328-8699 E-Mail:christina.hooper@eaglecounty.us CONSULTANT: W.R.Hopping and Company William R.Hopping,MAI,ISHC 5773 Shasta Circle Littleton,Colorado 80123 Telephone:303-798-4045 Facsimile:303-798-4027 Email:wrhotel(a�aol.com 11. Coordination. Consultant acknowledges that the development and processing of the Services for the Project may require close coordination between various consultants and contractors. Consultant shall coordinate the Services required hereunder with the other consultants and contractors that are identified by County to Consultant from time to time,and Consultant shall immediately notify such other consultants or contractors,in writing,of any changes or revisions to Consultant's work product that might affect the work of others providing services for the Project and concurrently provide County with a copy of such notification. Consultant shall not knowingly cause other consultants or contractors extra work without obtaining prior written approval from County.If such prior approval is not obtained,Consultant shall be subject to any offset for the costs of such extra work. 12. Termination. County may terminate this Agreement, in whole or in part,at any time and for any reason,with or without cause,and without penalty therefor with seven(7)calendar days' prior written notice to the Consultant. Upon termination of this Agreement,Consultant shall immediately provide County with all documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents.County shall pay Consultant for Services satisfactorily performed to the date of termination. Should the County terminate this Agreement prior to completion of any of the four appraisal reports to be provided hereunder,County will be billed at Consultant's hourly rate($275/hour)for work completed prior to the date of termination. 13. Venue,Jurisdiction and Applicable Law. Any and all claims,disputes or controversies related to this Agreement,or breach thereof,shall be litigated in the District Court for Eagle County,Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 5 14. Execution by Counterparts;Electronic Signatures. This Agreement may be executed in two or more counterparts,each of which shall be deemed an original,but all of which shall constitute one and the same instrument. The parties appgove the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement:(i) Electronic or facsimile delivery of a fully executed copy of the signature page;(ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized,if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act,C.R.S.24-71.3-101 to 121. 15. Other Contract Requirements. a. Consultant shall be responsible for the completeness and accuracy of the Services, including all supporting data or 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 the County has accepted or approved the Services shall not relieve Consultant of any of its responsibilities. Consultant shall perform the Services in a skillful,professional and competent manner and in accordance with the standard of care,skill and diligence applicable to Consultants performing similar services. Consultant represents and warrants that it has the expertise and personnel necessary to properly perform the Services and covenants that its professional personnel are duly licensed to perform the Services within Colorado.This paragraph shall survive termination of this Agreement. b. 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. c. This Agreement constitutes an agreement for performance of the 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. d. Consultant represents and warrants that at all times in the performance of the Services, Consultant shall comply with any and all applicable laws,codes,rules and regulations. e. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. f. Consultant shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. g. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest.Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties,and not to any third party. 6 h. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. i. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. j. The signatories to this Agreement aver to their knowledge,no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement.The Consultant has no beneficial interest,direct or indirect,that would conflict in any manner or degree with the performance of the Services and Consultant shall not employ any person having such known interests. k. 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(i)is a citizen or otherwise lawfully present in the United States pursuant to federal law,(ii)to the extent applicable shall comply with C.R.S.24-76.5-103 prior to the effective date of this Agreement. 16. 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 Contracts for Services,and this Agreement. By execution of this Agreement,Consultant certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Agreement 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 Agreement. a. Consultant shall not: i. Knowing y employ or contract with an illegal alien to perform Services under this Agreement;or ii. Enter into a subcontract 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 under this Agreement 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: 7 http://www.dhs.govlxprevprot/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 (3) 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 (3) 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 Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Consultant shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Consultant violates this provision of this Agreement and County terminates the Agreement for such breach. 17. Confidentiality The Parties acknowledge and agree that in the course of Consultant rendering Services under the Agreement, confidential data may be shared between the Parties. The Parties shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, such confidential data outside its intended use under the scope of this Agreement. Any such information must be marked as confidential. The parties recognize that the County is subject to the Colorado Open Records Act("CORA")and nothing herein shall preclude a release of information deemed a public record under CORA. [REST OF PAGE INTENTIONALLY LEFT BLANK] 8 4 IN WITNESS WHEREOF, the •. ies have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: ca BOARD OF COUNTY COMMISSIONERS _ +;+1,11 .,, By: _I By: jicum. f. ., go Teak Simonton NI' •Rt' Sara J. Fisher, hairman Clerk to the Board of County Commissioners CONSULTANT 7 'opping and Company,Inc. : B Y //�[/� •ail Print Name: fia'ir1 �� ! r' -1' i Title: "Wes dot-- 9