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HomeMy WebLinkAboutC17-327 Chrysalis Valuation Consultants LLCAGREEMENT FOR PROFESSIONAL SERVICES BETWEEN EAGLE COUNTY, COLORADO AND CHRYSALIS VALUATION CONSULTANTS, LLC THIS AGREEMENT ("Agreement") is effective as ofthe it Si - day of ]�AfC^%66X 201 7 by and between Chrysalis Valuation Consultants, LLC a Colorado Limited Liability Company (hereinafter "Consultant" or "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, on behalf of Eagle County, Colorado, the Eagle County Board of Equalization and the Eagle County Assessor seek consultation services in connection with the valuation of fifteen hotel properties located in Eagle County, Colorado (the "Project'); 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. Consultant agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services described in Exhibit A ("Services") which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Consultant. agrees to furnish the Services in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, then Consultant agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Consultant represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 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. C17-327 d. In connection with performance of the Services, Consultant agrees to the confidentiality and non -disclosure Agreement attached hereto as Exhibit B, and incorporated herein by this reference. 2. County's Representative. The Eagle County Assessor or his 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 through the 31 S' day of December, 2017. 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. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Consultant's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Consultant for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $6,100 without an 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. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Consultant. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. Any out-of-pocket expenses to be incurred by Consultant and reimbursed by County shall be identified on Exhibit A. 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. Consultant shall not be reimbursed for expenses that are not set forth on Exhibit A unless specifically approved in writing by County. C. 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 perfonned as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Consultant shall 2 Eagle County Prof Services final 5/14 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. d. 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. e. 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). 6. Sub -consultants. 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 agreements for the performance of any of the Services or additional services 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 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. Consultant shall require each sub -consultant, as approved by County and to the extent of the Services to be performed by the 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. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any sub -consultant hired by Consultant and Consultant shall cooperate in such process. The Consultant shall be responsible for the acts and omissions of its agents, employees and sub -consultants or sub -contractors. 7. Insurance. Consultant agrees to provide and maintain at Consultant's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: Types of Insurance. Workers' Compensation insurance as required by law. Auto coverage with limits of liability 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. iii. Intentionally Omitted. iv. Professional liability insurance with prior acts coverage for all Services required hereunder, in a form and with an insurer or insurers satisfactory to County, with limits of liability of not less than $1,000,000 per claim and $2,000,000 in the aggregate. In the event the professional liability 3 Eagle County Prof Services Final 5114 insurance is on a claims -made basis, Consultant warrants that any retroactive date under the policy shall precede the effective date of this Agreement. Continuous coverage will be maintained during any applicable statute of limitations for the Services and Project. b. Other Requirements. Intentionally Omitted. 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 ANIL 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. 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) will be provided to County upon request within five (5) business days of a written request from County. Consultant may also be required to 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 lit -nits 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. 4 Eagle County Prof Services Final 5114 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. 8. 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 tennination 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 purposes of this paragraph, the term "documents" shall mean and include all reports, plans, studies, tape or other electronic recordings, drawings, sketches, estimates, data sheets, maps and work sheets produced, or prepared by or for Consultant (including any employee or subconsultant in connection with the performance of the Services and additional services under this Agreement). 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other 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 confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: 5 Eagle County Prof Services Final 5114 Eagle County, Colorado Attention: Mark Chapin 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8640 Facsimile: 970-328-8679 E -Mail: mark.chapin@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E -Mail: atty@eaglecounty.us CONSULTANT: MArk R. Linne Principal Chrysalis Valuation Consultants, LLC 225 Union Blvd, Ste.150 Lakewood, CO 80228 303-995-0899 IL 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. 6 Eagle County Prof Services Final 5114 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. 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 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. 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. 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. 7 Eagle County Prof' Services Final 914 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. 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. Consultant shall maintain for a minimum of three years, adequate financial and other records for reporting to County. Consultant shall be subject to financial audit by federal, state or county auditors or their designees. Consultant authorizes such audits and inspections of records during normal business hours, upon 48 hours' notice to Consultant. Consultant shall fully cooperate during such audit or inspections. k. The signatories to this Agreement aver to their knowledge, no employee of the County has an}, 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. I. The Consultant, if a natural person eighteen (18) years of age or older, hereby swears and affirms tinder penalty of per jury that lie 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. As used in this Section 16, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Consultant has any employees or subcontractors, Consultant shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Consultant certifies that it does not knowingly employ or contract with an undocumented individual 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. Consultant shall not: 8 Eagle County Prof Services Final 5114 i. Knowingly employ or contract with an undocumented individual 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 undocumented individual 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: https://www.uscis.gov/e-verify 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 undocumented individual, 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 undocumented individual; 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 undocumented individual; 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 undocumented individual. 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. 9 Eagle County Prof' Services Final 5/14 [REST OF PAGE INTENTIONALLY LEFT BLANK] 10 Eagle County Prof Services Final 5114 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: Bryan Treu, Interim County Manager CONSUL- ANT: B i Print 1 Title:i 11 Eagle County Prof Services Final 5/14 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES iz Eagle County Prof Services Final 5114 EXHIBIT A Scope of Work: Tax Year 2017 Valuation Audit for 15 Commercial Hotel Properties The Assessor's tax year 2017 valuation of certain hotel properties, which were upheld by the County Board of Equalization, are currently under appeal before the State Board of Assessment Appeals or the Eagle County District Court. The hotel properties are organized in two groups, with the first tier being the more complicated in terms of financial statements and operational factors described below. Tier 1: Vail Marriott 2. Ritz-Carlton Bachelor Gulch i. Dour Seasons 4. Vail Cascade 1 Hotel Talisa 5. Park IIyatt 6. Lodge at Vail 7. The Ar•abelle Complicating the income approach to value for the Tier 1 hotels are factors such as: some hotel properties are connected with individually -owned residential units where hotel operator serves as the property manager for those units when they are included in the rental pool, resulting in complicated profit and loss statements intermixing revenue and expenses related to those property management agreements; several hotel properties have lease agreement with third party operators of onsite restaurants; and one hotel property leases a separately owned parcel from a third party for operation of a spa. Where applicable, details and documents related to these leases, operating agreement and management agreements (as currently available to the County) will be provided along with the income and expense information. Tier 2: 8. Osprey Hotel 9. Pines Lodge 10. The Sebastian 11. Tivoli 12. Gastof Gramshammer 13. Clements Basalt 14. Christiania Hotel 15. Austria Haus For both Tier 1 and Tier 2 hotels, the Assessor's valuations were derived based on cost, income and market approach, with most heavy reliance on the income approach. Historically, reviewing boards and courts have relied primarily on the income approach to value for commercial hotel properties. Consultant will review the data (as currently available to the County), including profit and loss statements and data supporting the capitalization rate to give us a baseline understanding as to whether the current values are supportable. For this stage of engagement, we seek an outside expert option as to whether or not the assigned values are supportable under the income approach. We expect that the results of this investigation will allow us to determine which appeals are likely to settle without the need for hearing and assist us in developing litigation strategies moving forward for the others. The Consultant will sign a confidentiality agreement to protect the commercial financial data related to these hotel operations from public disclosure or use for any purpose other than the consulting engagement. 11. Time and Place of Services Consultant shall perform the Services during Cagle County business hours at the Cagle County Assessor's Office on September 19, 2017 and September 20, 2017. Consultant may be retained for additional Services after September 20, 2017 at the rates set forth herein based on written request of the Assessor and subject to the requirements of Section 5 of the Agreement. 11. Compensation Cagle County shall pay Consultant the rate of $100 per hour for travel time to and from the Cagle County Assessor's Office and the rate of $275 per hour for performance of the Services. 2 EXHIBIT B CONFIDENTIALITY AGREEMENT 13 Eagle County Prof Services Final 5114 CONFIDENTIALITY AND NON DISCLOSURE AGREEMENT The Eagle County Assessor and Eagle County Board of Equalization on behalf of the County Eagle County, Colorado (hereinafter collectively, "Eagle County") and Chrysalis Valuation Consultants, LLC ("Consultant"), in contemplation of Consultant proNUing to Eagle County certain valuation -review services defined in the Professional Services Agreement (the "Services"), hereby agree that in preparing for and in performance of the Services, County may disclose to Consultant certain commercial financial data of third -party property owners. Eagle County and Consultant further agree, pursuant to C.R.S_ § 24-72-204(2)(d)(TV), that ally commercial financial data of third parties provided in connection with the Services must remain confidential as defined herein. Accordingly, Consultant agrees that any and all third -party confidential commercial financial data supplied to it by County in connection with the Services shall be at all times kept confidential by Consultant, and that Consultant shall not disclose such data under any circumstances to any third -party for any purpose, other than as may be expressly authorized in writing by Eagle County. The term "confidential," as used in this Agreement, shall mean protected against advertent or inadvertent disclosure, orally or in writing or in any other manner or form, to any person not signatory to this agreement as Consultant or a representative, employee or agent for Consultant. Consultant shall implement and adhere to reasonable measures and precautions to protect against such disclosure. In addition, Consultant agrees upon completion of its work on the proposal promptly to return to County any such information, and not to retain in its records any copies of such information. In undertaking to prepare such proposal and in fiilfilling the commitments made herein, Consultant will be acting in a fiduciary capacity for the benefit of County. Acknowledged and Agreed this 15`x' day of September, 2017. ,hs Valuatiol ons tants g�?nnel TO/T0 39dd 00L90L660C Zt?:9T LTOZ/9T/60