HomeMy WebLinkAboutC22-180 PopulousAGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN EAGLE COUNTY, COLORADO
AND
POPULOUS, INC.
THIS AGREEMENT (“Agreement”) is effective as of ____________________ by and between
Populous, Inc., a Missouri corporation with a principal place of business at 4800 Main Street, Suite 300,
Kansas City, Missouri 64112.(hereinafter “Consultant”) and Eagle County, Colorado, a body corporate
and politic (hereinafter “County”).
RECITALS
WHEREAS, County desires to engage a consultant to prepare a strategic master plan for the Eagle
County Fairgrounds, include planning and design services, public engagement, an implementation and
phasing plan and cost estimates for development of a multi-use event campus (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. Throughout the assessment, planning and design process
for this Project, Consultant shall prepare milestone review documentation for review by the Eagle County
Fairgrounds Master Plan Advisory Committee, and for review and approval by the County. The final
draft of the master plan, site design, implementation and phasing plan and economic impact analysis shall
be reviewed and vetted by the Eagle County Fairgrounds Advisory Committee and the County before the
final deliverable is printed by Consultant. The Project will conclude with the production by Consultant of
a final comprehensive document, which shall be a narrative and graphic document produced in a user-
friendly format suitable for both county staff and the public, as more fully described in Exhibit A hereto.
a.Consultant agrees to furnish the Services in accordance with the schedule established in
Exhibit A. 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.
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b. In the event of any conflict or inconsistency between the terms and conditions set forth in
Exhibit A and B and the terms and conditions set forth in this Agreement, the terms and conditions set
forth in this Agreement shall prevail.
c. 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.
2. County’s Representative. The Facilities Management Department’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 Project is
complete in accordance with the terms of this Agreement.
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 B. Compensation for the performance of the Services set
forth on Exhibit A to this Agreement shall not exceed one hundred seventy nine thousand
($179,000.00). In the event Consultant and County agree upon the need for additional services beyond
those described in Exhibit A (the “Additional Services”), those services shall be billed at the rates as set
forth in Exhibit B. Prior to commencement of any Additional Services for the Project, Consultant shall
first provide County with a written estimate which shall include an estimate of the labor, materials
without any mark up and any additional costs necessary to perform the Additional Services. Each
estimate must be approved by County’s Representative prior to commencement of the Additional
Services by Consultant and all rates shall be in accordance with the fee schedule set forth in Exhibit B.
Total compensation under this Agreement for the Services and any Additional Services shall not exceed
two hundred sixty thousand ($260,000.00) without a written 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.
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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 incurred by Consultant and reimbursed by County shall be
billed at cost and shall not exceed the sum of $20,000.00. Out-of-pocket expenses will be reimbursed
without any additional mark-up thereon and are included in the not to exceed contract amount of
$179,000.00 as 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 in excess of the not-to-exceed sum set forth in this Section 5.b. unless specifically
approved in writing by County.
c. 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.
d. 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 hereby
consents to the Consultant’s use of Crossroads Consulting and Marlin/Martin for the performance of
Services under this Agreement. 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:
a. Types of Insurance.
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i. Workers’ Compensation insurance as required by law.
ii. Business 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 hired,
and non-owned vehicles.
iii. Commercial General Liability coverage to include premises and operations,
personal/advertising injury, products/completed operations, broad form property damage with limits of
liability not less than $1,000,000 per occurrence and $2,000,000 aggregate limits.
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
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.
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 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 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. With the exception of Consultant’s professional liability coverage,
Consultant’s policy shall contain a waiver of subrogation against Eagle County.
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 approved to do business within the State of Colorado and all
policies must be written on a per occurrence basis unless otherwise provided herein.
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vii. Consultant’s certificate of insurance evidencing all required coverage(s) is
attached hereto as Exhibit C. Upon request, Consultant shall provide a copy of the required endorsements
required under this Agreement within five (5) business days of a written request from County.
viii. 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.
ix. The insurance provisions of this Agreement shall survive expiration or
termination hereof.
x. 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.
xi. 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 the extent caused by the negligent act, error or omission of 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.
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 (draft, concept and final), studies, analysis, 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
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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:
Eagle County, Colorado
Attention: Jan Miller
Post Office Box 850
Eagle, CO 81631
3289 Cooley Mesa Road
Gypsum, CO 81637
Telephone: 970-328-8889
Facsimile: 970-328-8899
E-Mail: jan.miller@eglecounty.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: attorneys@eaglecounty.us
CONSULTANT:
Populous, Inc.
Todd Gralla
3151 W. Tecumseh Road, Suite 220
Norman, Oklahoma 73072
(405) 310-4322 (p)
(405) 310-4327 (f)
With a copy to:
Populous
Attn: Zachary Rudman, Chief Legal Officer
4800 Main Street, Suite 300
Kansas City, MO 64112
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
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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. Either party 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 other party. 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, together with reimbursable expenses incurred 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.
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.
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
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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.
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 in accordance with generally accepted accounting principles. 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 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.
l. 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.
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
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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.
a. Consultant shall not:
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).
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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.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above.
CONSULTANT:
By:________________________________
Print Name: _________________________
Title: ______________________________
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its BOARD OF COUNTY
COMMISSIONERS
By: ______________________________
Jeanne McQueeney, Chair
Attest:
By: _________________________________
Regina O’Brien, Clerk to the Board
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Todd Gralla
Principal
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Senior Principal 420$
Senior Architect - PIC 360$
Senior Project Manager 300$
Senior Project Architect 300$
Senior Project Designer 300$
Architect 200$
Project Manager 220$
Project Architect 220$
Project Designer 220$
Architecture Designer III 155$
Architecture Designer II 140$
Architecture Designer I 120$
Senior Planner 385$
Planner 260$
Senior Landscape Architect 250$
Landscape Architect 165$
Landscape Designer II 120$
Landscape Designer I 115$
Senior Interior Designer 235$
Interior Designer 170$
Interiors Designer III 140$
Interiors Designer II 130$
Interiors Designer I 110$
Senior Graphic Designer 200$
Graphic Designer 165$
Graphics Designer II 130$
Graphics Designer I 115$
Computer Animation Specialist 220$
Specifications Writer 220$
Quality Coordinator 265$
Intern 70$
BIM Technician 130$
Administrative Assistant 120$
EXHIBIT
B
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