HomeMy WebLinkAboutC14-470 Absolutely, LLC Agreement a AGREEMENT REGARDING PROVISION OF PROFESSIONAL SERVICES FOR EAGLE COUNTY This Agreement Re,d� ding Provision of Professional Services for Eagle County ("Agreement"), dated this !' day of , 2014, is between the County of Eagle, State of Colorado, a body corporate and politic, by and through its County Manager ("County"), and Absolutely,LLC a Colorado limited liability company ("Consultant"). RECITALS WHEREAS, the Mid Valley Trails Committee (herein after referred to as the "Trails Committee"or the "Committee") is a volunteer Committee established to administer a portion of the Eagle County half-cent transportation tax that is dedicated to trails for the Roaring Fork Valley. The Committee is tasked with working on trail planning,trail referrals to public entities, grant requests and trails development. The Committee desires professional assistance in coordinating this work; and WHEREAS, The Consultant has extensive experience in meeting facilitation, project management and trail building and desires to provide professional service to the Mid Valley Trails Committee; and WHEREAS, the Consultant has given the County a proposal for performing the Services (defined below) and has represented that Absolutely, LLC has the expertise and personnel necessary to perform the Services in a proper and timely manner; and WHEREAS,the County desires to enter into an Agreement with the Consultant; and WHEREAS, the Consultant and the County intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the services and related terms and conditions to govern the relationship between the Consultant and the County in connection with the Services. AGREEMENT Therefore, based upon the representations by the Consultant set forth in the foregoing recitals, for good and valuable consideration and the receipt and sufficiency of which are hereby acknowledged, including the promises set forth herein,the parties agree to the following: 1. Scope of the Services: The Consultant shall assist the Trails Committee in all administrative, marketing, communications and trail work oversight needed and as more particularly described herein (the "Services"). For the year 2014, the Consultant shall assist the Mid Valley Trails Committee to: a. Provide administrative support to Mid Valley Trails Committee. 1 C�(j)-4 b. Consistent with Regional Trails Plan, identify and prioritize new trail opportunities. c. Manage contracts and oversee the completion of approved trails projects. d. Complete and facilitate the adoption of the 2014 update to the Mid Valley Regional Trails Plan. e. Communicate with the Town of Basalt, Pitkin County, and effected citizens, organization and agencies on the progress of various trail projects and planning efforts. f. Provide periodic reports and updates to Eagle County. The parties hereto recognize that the scope of Services may change by reason of a decision of the Trails Committee or the County. When the Consultant believes that the scope of Services has been changed, the Consultant shall immediately advise the County of such belief and shall also provide a statement of the maximum additional charges for such services. The Consultant shall not be entitled to be paid for any additional services unless and until the County agrees in writing that the scope of Services has changed and approves the statement of the maximum additional charges. 2. Consultant's Professional Level of Care: The Consultant shall be responsible for the completeness and accuracy of the Services performed, including all supporting data and 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 Consultants Services shall not relieve the Consultant of any of her responsibilities. The Consultant shall perform the Services in a skillful, professional and competent manner and in accordance with the highest standard of care, skill and diligence applicable to consultants with respect to similar services. The Consultant shall not be responsible for the content or accuracy of any reports or studies provided by the County or its representatives. This paragraph shall survive termination of this Agreement. 3. Contract Term and Termination: a. The term of this Agreement shall commence upon execution of the Agreement and shall continue until December 31, 2014, at which time the Agreement shall automatically terminate. The term of this Agreement may be renewed for additional one-year periods upon written agreement of the parties. b. The County may terminate this Agreement, in whole or in part, at any time for its convenience upon providing written notice to the Consultant specifying the date upon which termination becomes effective. This Agreement may be terminated by the Consultant in the event of a material default of any of the terms and conditions of the Agreement by the County, provided the Consultant has first provided the County with written notice of the default and allowed the County to cure said default within ten (10) days following receipt of the notice. Upon termination, the County shall be liable only for Services satisfactorily completed prior to the date of termination. At its sole option, the County may require that 2 • the Consultant complete particular portions of the Services on a time and reimbursable expenses basis consistent with paragraph four (4) hereof. Upon termination the Consultant shall deliver to County all data and other documents entirely or partially completed, together with all materials supplied to the Consultant by the County. Payment will be due within thirty (30) days after the Consultant has delivered the last of the materials and documents, together with any records that may be required to determine the amount due to Consultant. c. This Agreement shall in no way commit the Eagle County Board of County Commissioners to future support or future spending for the Mid Valley Trails Committee Program. 4. Compensation and Payment: The Consultant shall bill the County on a monthly basis and shall provide monthly accounting for time spent, updates on progress of work, and other supporting information as the County may so request. Payment shall be made in accordance with the following: a. Time shall be billed on a per hour basis at a rate of $80 per hour for Services rendered. b. Payment shall be due within 30 days of receipt of billing. c. The total fees and expenses for Services rendered for 2014 shall not exceed $15,000.00. d. The Consultant shall maintain comprehensive, complete and accurate records and accounts of her performance relating to this Agreement for a period of three (3) years following final payment hereunder, which period shall be extended at the County's reasonable request. The County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time, for the purpose of determining, in accordance with acceptable accounting and auditing standards, compliance with the requirement of this Agreement and the law. e. Consultant will not be reimbursed for any out-of-pocket expenses unless specifically approved in writing by the County. Out-of-pocket expenses will be reimbursed without any additional mark-up thereon and are included in the not to exceed contract amount set forth above. Out-of-pocket expenses shall not include any payment of salaries, bonuses or other compensation to personnel of Consultant. f. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Consultant was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Consultant shall 3 forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. g. 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. h. 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 of any year, without an appropriation therefor 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). 5. Independent Contractor: 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. The Consultant shall be, and shall perform as, an independent contractor. No agent, subcontractor, employee, or servant of the Consultant shall be, or shall be deemed to be, the employee agent or servant of the County. The Consultant shall be solely and entirely responsible for her acts and for the acts of the Consultant's agents, employees, servants and subcontractors during the performance of this Agreement. 6. Personnel: The Consultant understands and hereby acknowledges that the County is relying primarily upon the expertise and professional abilities of Consultant and its employee of agent, Temple Glassier. This Agreement is conditioned upon the continuing direct involvement of the Consultant in the Services performed. The Consultant may not subcontract or delegate any part of the Services or substitute subcontractors without the County's prior written consent, which consent the County may withhold in its sole discretion. In the event the Consultant is unable to remain involved in the Services, the Consultant shall immediately notify the County and the County shall have the option to terminate this Agreement. 7. Ownership of Documents: All documents including electronic files which are obtained during or prepared in the performance of the Services shall remain the property of the County and are to be delivered to the County before final payment is made to the Consultant or upon earlier termination of this Agreement. 8. No Assignment: The parties to this Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that in entering into this Agreement the County is relying upon the professional services and reputation of the Consultant. Therefore, the Consultant may not assign its interest in 4 the Agreement including the assignment of any rights or delegation of any obligations provided therein without the prior written consent of the County, which consent the County may withhold in its sole discretion. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns, and shall not be deemed to be for the benefit of or enforceable by any third party. 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. 9. Insurance: At all times during the term of this Agreement Consultant shall maintain the following insurance. a. Types of Insurance. i. Workers' Compensation insurance as required by law. ii. Comprehensive General Liability (including personal injury) with limits of not less than $500,000 per individual and $1,000,000 per occurrence. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns,elected officials, employees, agents and volunteers as additional insureds. ii. Consultant's certificates of insurance shall include sub-consultants as additional insureds under its policies or Consultant shall furnish to County separate certificates and endorsements for each sub-consultant. All coverage(s) for sub-consultants shall be subject to the same minimum requirements identified above. Consultant and sub-consultants, if any, shall maintain the foregoing coverage in effect until the Services are completed. In addition, all such policies shall be kept in force by Consultant and its sub-consultants until the applicable statute of limitations for the Project and the Services has expired. iii. Insurance shall be placed with insurers duly licensed or authorized to do business in the State of Colorado and with an "A.M. Best" rating of not less than A-VII. iv. Consultant's insurance coverage shall be primary and non- contributory with respect to all other available sources. Consultant's policy shall contain a waiver of subrogation against Eagle County. 5 v. All policies must contain an endorsement affording an unqualified thirty (30) days' notice of cancellation to County in the event of cancellation of coverage. vi. All insurers must be licensed or approved to do business within the State of Colorado and all policies must be written on a per occurrence basis unless otherwise provided herein. vii. Consultant's certificate of insurance evidencing all required coverage(s) is attached hereto as Exhibit A. Upon request, Consultant shall provide a copy of the actual insurance policy and/or required endorsements required under this Agreement within five (5) business days of a written request from County, and hereby authorizes Consultant's broker, without further notice or authorization by Consultant, to immediately comply with any written request of County for a complete copy of the policy. viii. Consultant shall advise County in the event the general aggregate or other aggregate limits are reduced below the required per occurrence limit. Consultant, at its own expense, will reinstate the aggregate limits to comply with the minimum limits and shall furnish County a new certificate of insurance showing such coverage. ix. 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. x. The insurance provisions of this Agreement shall survive expiration or termination hereof. xi. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. xii. Consultant is not entitled to workers' compensation benefits except as provided by the Consultant, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Consultant or some other entity. The Consultant is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 6 10. Indemnification: The Consultant shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County 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 Consultant or any of its sub-consultants hereunder; and Consultant shall reimburse County for reasonable 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. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Consultant. This paragraph shall survive expiration or termination hereof. 11.Notices: Any notice and all written communications required under this Agreement shall be given in writing by personal delivery FAX or mail to the other party at the following addresses: Consultant: Absolutely, LLC Attention: Temple Glassier PO Box 1147 Basalt CO 81621 Fax: 720-367-5093 County: Bryan Treu Eagle County Attorney PO Box 850 Eagle CO 81631 Fax: 970-328-8629 Committee: Mid Valley Trails Committee c/o Don Hannon, Chairman PO Box 1147 Basalt CO 81621 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 US Postal Service. 12. Prohibitions on Public Contracts for Services: 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 7 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. 8 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 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. 13. 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 approve 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. 14. 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. 15. Miscellaneous: a. The Consultant shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, sexual orientation, age, political affiliation or family 9 responsibility. The Consultant shall require all subcontractors to agree to the provisions of this subparagraph. b. The making, execution and delivery of this Agreement by the parties hereto has not been induced by any prior or contemporaneous representation, statement, warranty, or agreement as to any matter other than those herein expressed. This Agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, in effect between them relating to the subject matter hereof. This Agreement may not be amended, including by any modification of, deletion from or addition to the scope of Services, except by a written document of equal formality executed by both parties hereto. c. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado, without reference to choice of law rules. The parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the 5th Judicial District for the State of Colorado. d. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. e. Any waiver by either party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision. f. If any clause or provision of this Agreement shall be held to be invalid in whole or in part, then the remaining clauses and provisions, or portions thereof, shall nevertheless be and remain in full force and effect. g. The Consultant shall perform the Services specified in this Agreement in accordance with local state and federal law. h. 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. 10 IN WITNESS WHEREOF,the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER r By: 11, : ■ I 1 . Coun A..anager CONSULTANT: Absolutely,LLC Or /c.,ILL elf / y° Temple G assie, 11 1 A I3 CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DEVYYYY) 12/29/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POUCIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Eileen Martin Peter Martin Insurance DBA Martin Insurance PHONE EXei. (970)963-6161 I T .Not(970)963-4331 995 Cowen Drive Suite 202 aooRess:eileenl @petermartininsurance.com INSURER(S)AFFORDING COVERAGE NAIC# Carbondale CO 81623 INSURER A:Berkshire Hathaway INSURED INSURER B: Absolutely LLC INSURER C: 638 County Road 162 INSURERD: INSURER E: Carbondale CO 81623 INSURER F: COVERAGES CERTIFICATE NUMBERCL1421204675 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR -ADOL SUBR POLICY EFF POUCY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER IMM/DD/YYYY) IMM/DDIYYYY) UMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED X COMMERCIAL GENERAL LIABILITY PREMISES(Ea occurrence) $ • A CLAIMS-MADE X OCCUR X 02GHM00010802 2/1/2014 2/1/2015 MED EXP(Any one person) $ 5,000 PERSONAL a ADV INJURY $ 1,000,000 GENERAL AGGREGATE _$ 2,000,000_ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOP AGG $ - POLICY 1 !JE(OT_ i LOC -$ AUTOMOBILE LUU3lUTY accident))SINGLE LIMIT $ 1,000,000 A ANY AUTO BODILY INJURY(Per person) $ ALL OWNED X SCHEDULED 02GBM00010802 2/1/2014 2/1/2015 BODILY INJURY Per accident S AUTOS AUTOS I ) HIRED AUTOS NON-OWNED PROPERTY DAMAGE (Per accident) Underinsured motorist property $ UMBRELLA(JAB OCCUR EACH OCCURRENCE $ EXCESS MB CLAIMS-MADE jj AGGREGATE ; DED } I RETENTIONS S WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS'UABIUTY Y/N I TORY LIMITS _ ER ANY PROPRIETOR/PARTNERIEXECUTIVE E.L.EACH ACCIDENT OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT_$ A Garagekeeper 02GBM00010802 2/1/2014 2/1/2015 $150,000 B In-tow limits 02GB/400010802 2/1/2014 2/1/2015 $100,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 191,Additional Remarks Schedule,If more space Is required) Certificate holder is listed as additional insured CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Eagle County ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 850 AUTHORIZED REPRESENTATIVE 500 Braodway Eagle, CO 81631 Peter Martin/MSP ACORD 25(2010/05) ®1988-2010 ACORD CORPORATION. All rights reserved. 4