HomeMy WebLinkAboutC23-309 Kimley Horn and Associates1 Eagle County Prof Services Final 5/14 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN EAGLE COUNTY, COLORADO AND KIMLEY HORN AND ASSOCIATES, INC. THIS AGREEMENT (“Agreement”) is effective as of the ____ day of ______________ by and between Kimley Horn and Associates, Inc., a North Carolina Corporation (hereinafter “Consultant” or “Contractor”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, the County is seeking a consultant to assist the County on an as-needed basis on-call and with ongoing contract planning services for the review and processing of land use applications, as defined below in paragraph 1. This contract planning service role includes performing the tasks required for the timely review of land use applications and is expected to include all aspects of the land use process from the point the application is assigned through memorialization of the final outcome on each land use application. Assigned land-use files may consist of both those that are subject to administrative and consent approval, as well as those which require Planning Commission and Board of County Commissioner review in a public hearing; 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 planning services at the rates set forth in Exhibit A, attached hereto and incorporated herein by reference. The Services shall generally include the tasks set forth herein and on the attached Exhibit A, and shall be performed in accordance with the provisions and conditions of this Agreement. The tasks, described further in Exhibit A, attached hereto and incorporated herein, consist of: • Processing applications in accordance with standard Eagle County procedures • Reviewing applications for conformance with Eagle County regulations and standards and providing written comments to applicant • Attending Eagle County staff and project meetings as necessary • Meeting with applicants and their consultant teams and responding to their inquiries • Responding to project specific inquiries from members of the public DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 September21 2 Eagle County Prof Services Final 5/14 • Presenting at neighborhood meetings and public hearings including Eagle County Planning Commission and Board of County Commissioners • Generally acting as a representative of Eagle County in the land use review process. The tasks will include presentation of staff reports, presentations and application files at public hearings before the Planning Commission and the Board of County Commissioners. Multiple hearings per application may be necessary, depending on the complexity and nature of each application. a. Consultant agrees to furnish the Services on an ongoing and as needed basis and in accordance with a mutually agreeable schedule approved by County in writing. Consultant and County will mutually agree on whether Consultant will provide review and processing Services to each specific application on a case-by-case basis as dictated by the County’s needs and Consultant’s capacity to complete the review in a timely manner or the presence of a conflict of interest on the part of Consultant. 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. Additional Services: Consultant may, upon request and authorization from County, be available to provide services in addition to those identified herein. Any services not specifically provided for in the above scope will be considered Additional Services and may be provided based on a mutually agreed upon scope, fee, and schedule as authorized by the County. c. 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. d. Consultant agrees that it will use its best efforts to not enter into any consulting or other arrangements with third parties that will conflict in any manner with the Services. Consultant will notify the County promptly if Consultant becomes aware of any conflict of interest. e. Consultant acknowledges that it has read and understood the Eagle County Innovation and Technology Department 3rd Party Remote Access Policy, attached hereto as Exhibit B, and that it will comply with the provisions of said Policy during the Term of this Agreement. 2. County’s Representative. The designee of the Director of the Community Development Department shall be Consultant’s contact with respect to this Agreement and performance of the Services. a. County Responsibilities: i. Designate in writing a person to act as its representative, such person having complete authority to transmit instructions, receive information, and make or interpret the County’s decisions. DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 3 Eagle County Prof Services Final 5/14 ii. Provide all information and criteria as to the County’s requirements, objectives, and expectations for the project and all standards of development, design, or construction. iii. Provide Consultant all available studies, plans, or other documents pertaining to the project, such as surveys, engineering data, environmental information, etc., all of which Consultant may rely upon. iv. Arrange for access to the site and other property as required for Consultant to provide its services. v. Review all documents or reports presented by Consultant and communicate decisions pertaining thereto within a reasonable time so as not to delay Consultant. vi. Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary. vii. Obtain any independent accounting, legal, insurance, cost estimating, and feasibility services required by County. viii. Give prompt written notice to Consultant whenever County becomes aware of any development that affects Consultant’s services or any defect or noncompliance in any aspect of the project. 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 December 31, 2023. 4. Extension or Modification. This Agreement may be renewed for one additional one-year period on the same terms and conditions contained in this Agreement. 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 services identified in Exhibit A on an hourly labor fee plus expense basis. Labor fee will be billed on an hourly basis according to the Consultant’s then-current rates. Hourly summaries will be provided for each application and sub- Task. Services provided will be billed in accordance with the attached rate schedule. Total compensation for the Services performed during the Term of this Agreement shall not exceed $200,000. 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. DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 4 Eagle County Prof Services Final 5/14 a. Consultant shall invoice monthly on or before the 10th of the month. 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. For all tasks, direct reimbursable expenses such as express delivery services, fees, air travel, hotel and other direct expenses will be billed at 1.15 times cost. All permitting, application and similar project fees, where applicable, will be paid directly by the 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 performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Consultant shall 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 Karl Barton, employee 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. Consultant agrees that Karl Barton will be assigned to perform the Services hereunder. County shall have the right in its reasonable discretion to approve all other personnel assigned to the subject Services during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Services. 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. DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 5 Eagle County Prof Services Final 5/14 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. i. Workers’ Compensation insurance as required by law. ii. 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. 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’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. DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 6 Eagle County Prof Services Final 5/14 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 B. 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. 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, to the extent caused by the negligent act or omission of the 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 DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 7 Eagle County Prof Services Final 5/14 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, 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). Any modifications made by the County to any of the Consultant’s documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the Consultant will be at the County’s sole risk and without liability to the Consultant. 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: Eagle County, Colorado Attention: Bill Gibson 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8751 Facsimile: 970-328-7185 E-Mail: Bill.Gibson@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: Kimley-Horn and Associates, Inc DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 8 Eagle County Prof Services Final 5/14 Attention: Karl Barton 380 Interlocken Crescent Suite 100 Broomfield, CO 80021 Telephone: 303-263-4370 Email: karl.barton@kimley-horn.com 11. Coordination. Consultant acknowledges that the development and processing of the Services for the Project may require close coordination between various County departments, 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 promptly 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 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. 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 thirty (30) 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. 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 DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 9 Eagle County Prof Services Final 5/14 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. Notwithstanding any other provision of this Agreement, the Consultant shall not have liability or be deemed in breach because of delays caused by any factor outside of its reasonable control, including but not limited to natural disasters adverse weather, pandemics, epidemics, acts of the County, third parties, or other governmental agencies. 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. 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 DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 10 Eagle County Prof Services Final 5/14 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. Non-solicitation. Consultant and County agrees that during the term of this Agreement, and for a period of one (1) year immediately thereafter, neither Party shall solicit for employment any employee of the other Party who was directly and materially involved in the performance of the Party’s obligations under this Agreement, unless the soliciting Party obtains written consent of the other Party. . 17. Litigation. In the event litigation is commenced against the County in connection with any land use file for which Consultant performs Services under this Agreement, the County Attorney’s office will provide legal defense for Consultant in connection with investigating or defending any such action as deemed necessary by County, in its sole discretion. Notwithstanding the foregoing, if such litigation is the result of or arises out of the negligent act or omission or intentional wrongful act of Consultant, this paragraph 17 shall not apply and Consultant shall be responsible for obtaining its own counsel and for all costs and expenses relating thereto. 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: ______________________________ Jeff Shroll, County Manager CONSULTANT: By:________________________________ Print Name: _________________________ Title: ______________________________ Randall J. Phelps Senior Vice President DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 11 Eagle County Prof Services Final 5/14 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 kimley-horn.com 4582 South Ulster Street, Suite 1500, Denver, CO 80237 303 228 2300 August 24, 2023 Bill Gibson Eagle County Community Development Director Eagle County, Colorado PO Box 179 500 Broadway Eagle, CO 80202 Re: Contract Planning Services Mr. Gibson: Kimley-Horn and Associates, Inc. (“Kimley-Horn”) is pleased to submit this letter agreement (the “Agreement”) to Eagle County, (the “Client”) for providing contract planning services to Eagle County. Our Project Understanding, Scope of Services, and Fee are provided below. PROJECT UNDERSTANDING We understand that Eagle County requires on-call and ongoing contract planning services for the review and processing of land use applications. This contract planning service role includes performing the tasks required for the review of land use applications and is expected to include aspects of the land use process from the point the application is assigned through memorialization of the final outcome on each land use application. Assigned land-use files will include those that are subject to administrative and consent approval, as well as those which require Planning Commission and Board of County Commissioner review in a public hearing. These tasks, described further in the Scope of Services section below, generally consist of the following: • Processing applications in accordance with standard Eagle County procedures • Reviewing applications for conformance with Eagle County regulations and standards and providing written comments to applicant • Attending Eagle County staff and project meetings as necessary • Meeting with applicants and their consultant teams and responding to their inquiries • Responding to project specific inquiries from members of the public • Presenting at neighborhood meetings and public hearings including Eagle County Planning Commission and Board of County Commissioners • Generally acting as a representative of Eagle County in the land use review process. SCOPE OF SERVICES Task 101 – On Call Contract Planning Services Under this task Kimley-Horn will provide the following services: DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 Eagle County Contract Planning Services Eagle County, Colorado – Page 2 of 9 kimley-horn.com 380 Interlocken Crescent, Suite 100, Broomfield, CO 80021 303 228 2300 • Task 101.1: Review of land-use applications o Participation in pre-application meetings and preparation of post meeting notes o Performing Check-In and Sufficiency reviews o Performing detailed review of application materials customarily reviewed by the Eagle County Planning Department for conformance with Eagle County regulations, codes, standards, policies, and established practices. o Coordinating and reconciling comments provided by other Eagle County reviewers and outside agencies for consistency and applicability, o Preparing staff review comment letters o File closeout including resolutions and recording • Task 101.2: Presentations and Public Hearings o Preparation of staff reports and staff presentations o Presentation at Planning Commission public hearings o Presentation at Board of County Commissioner public hearings • Task 101.3: Coordination and Communication o Referral agency coordination o Coordination with Community Development’s Administrative Assistant for application and process requirements including noticing o Meeting and coordination with Eagle County staff regularly and as necessary including preparation of meeting materials and notes o Meeting with applicant and their consultant team and responding to inquiries as necessary o Meeting with members of the public and responding to inquires as necessary Meetings and other work may be conducted remotely and virtually; however, in-person attendance and participation will be expected for hearings of the Planning Commission and the Board of County Commissioners. At the commencement of services, the Director and staff will assist with file orientation discussions, file templates, points of contact, software training schedule, deadlines, and other matters including a desired meeting schedule. ADDITIONAL SERVICES Kimley-Horn may, upon request and authorization from the Client, may be available to provide services in addition to those identified herein. Any services not specifically provided for in the above scope will be considered Additional Services and may be provided based on a mutually agreed upon scope, fee, and schedule as authorized by the Client. INFORMATION PROVIDED BY CLIENT Kimley-Horn shall be entitled to rely on the completeness and accuracy of all information provided by the Client or the Client’s consultants or representatives. The Client shall provide all information requested by Kimley-Horn. SCHEDULE DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 Eagle County Contract Planning Services Eagle County, Colorado – Page 3 of 9 kimley-horn.com 380 Interlocken Crescent, Suite 100, Broomfield, CO 80021 303 228 2300 We will provide our services as expeditiously as practicable with the goal of meeting a schedule to be mutually agreed upon for each assignment. FEE AND BILLING Kimley-Horn will perform the services identified in the scope of services on an hourly labor fee plus expense basis. Labor fee will be billed on an hourly basis according to our then-current rates. Hourly summaries will be provided for each application and sub-Task. Services provided will be billed in accordance with the attached rate schedule. Reimbursable Expenses – For all tasks, direct reimbursable expenses such as express delivery services, fees, air travel, and other direct expenses will be billed at 1.15 times cost. A percentage of labor fee (5%) will be added to each invoice (to be billed as office expense) to cover certain other expenses such as telecommunications, in-house reproduction, postage, supplies, project related computer time, and local milage. All permitting, application, and similar project fees will be paid directly by the Client. Fees stated herein assume authorization of all tasks and continuous progression of the Project. If significant stoppages occur or individual task authorization is desired, additional fees may be required to complete the noted scope of services. Kimley-Horn, in an effort to expedite invoices and reduce paper waste, submits invoices via email in an Adobe PDF format. We can also provide a paper copy via regular mail if requested. Please include the invoice number and Kimley-Horn project number with all payments. Invoices will be e-mailed to: Bill.Gibson@eaglecounty.us. CLOSURE In addition to the matters set forth herein, our Agreement shall include and be subject to the Agreement for Professional Services between Eagle County, Colorado and Kimley-Horn and Associates, Inc. and the attached Standard Provisions, which are incorporated by reference. As used in the Standard Provisions, "Consultant" shall refer to Kimley-Horn and Associates, Inc., and "Client" shall refer to Eagle County, Colorado. The parties agree to enter into a mutually agreeable contractual arrangement following award of the Project. We will commence services, as defined within the Fee and Expenses, only after we have received a fully-executed agreement. Fees stated in this Proposal are valid for sixty (60) days after the date of this letter. We appreciate the opportunity to provide these services to you. Please contact me if you have any questions. Please contact me at (303) 263-4370 if you have any questions. Sincerely, KIMLEY-HORN AND ASSOCIATES, INC. By: Karl Barton, AICP By: Randall J. Phelps, P.E. Project Manager Senior Vice President DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 Eagle County Contract Planning Services Eagle County, Colorado – Page 4 of 9 kimley-horn.com 380 Interlocken Crescent, Suite 100, Broomfield, CO 80021 303 228 2300 Attachment – Standard Provisions, Hourly Rates DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 1 KIMLEY-HORN AND ASSOCIATES, INC. STANDARD PROVISIONS 1) Kimley-Horn's Scope of Services and Additional Services. Kimley-Horn will perform only the services specifically described in this Agreement. If requested by the Client and agreed to by Kimley-Horn, Kimley-Horn will perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay Kimley-Horn for any Additional Services an amount based upon Kimley-Horn’s then-current hourly rates plus an amount to cover certain direct expenses including telecommunications, in-house reproduction, postage, supplies, project related computer time, and local mileage. Other direct expenses will be billed at 1.15 times cost. 2) Client's Responsibilities. In addition to other responsibilities herein or imposed by law, the Client shall: a. Designate in writing a person to act as its representative, such person having complete authority to transmit instructions, receive information, and make or interpret the Client's decisions. b. Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project and all standards of development, design, or construction. c. Provide Kimley-Horn all available studies, plans, or other documents pertaining to the project, such as surveys, engineering data, environmental information, etc., all of which Kimley-Horn may rely upon. d. Arrange for access to the site and other property as required for Kimley-Horn to provide its services. e. Review all documents or reports presented by Kimley-Horn and communicate decisions pertaining thereto within a reasonable time so as not to delay Kimley-Horn. f. Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary. g. Obtain any independent accounting, legal, insurance, cost estimating, and feasibility services required by Client. h. Give prompt written notice to Kimley-Horn whenever the Client becomes aware of any development that affects Kimley-Horn's services or any defect or noncompliance in any aspect of the project. 3) Period of Services. Unless otherwise stated herein, Kimley-Horn will begin work after receipt of a properly executed copy of this Agreement. This Agreement assumes conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be extended as necessary for delays or suspensions due to circumstances that Kimley-Horn does not control. If such delay or suspension extends for more than six months, Kimley-Horn’s compensation shall be renegotiated. 4) Method of Payment. Client shall pay Kimley-Horn as follows: a. Invoices will be submitted periodically for services performed and expenses incurred. Payment of each invoice will be due within 25 days of receipt. The Client shall also pay any applicable sales tax. All retainers will be held by Kimley-Horn and applied against the final invoice. Interest will be added to accounts not paid within 25 days at the maximum rate allowed by law. If the Client fails to make any payment due under this or any other agreement within 30 days after Kimley-Horn's transmittal of its invoice, Kimley-Horn may, after giving notice to the Client, suspend services and withhold deliverables until all amounts due are paid. b. If the Client relies on payment or proceeds from a third party to pay Kimley-Horn and Client does not pay Kimley- Horn’s invoice within 60 days of receipt, Kimley-Horn may communicate directly with such third party to secure payment. c. If the Client objects to an invoice, it must advise Kimley-Horn in writing giving its reasons within 14 days of receipt of the invoice or the Client’s objections will be waived, and the invoice shall conclusively be deemed due and owing. If the Client objects to only a portion of the invoice, payment for all other portions remains due. d. If Kimley-Horn initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall include the cost, at Kimley-Horn's normal hourly billing rates, of the time devoted to such proceedings by its employees. e. The Client agrees that the payment to Kimley-Horn is not subject to any contingency or condition. Kimley-Horn may negotiate payment of any check tendered by the Client, even if the words “in full satisfaction” or words intended to have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and without prejudicing any right of Kimley-Horn to collect additional amounts from the Client. 5) Use of Documents. All documents and data prepared by Kimley-Horn are related exclusively to the services described in this Agreement and may be used only if the Client has satisfied all of its obligations under this DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 Rev 06/2023 2 Agreement. They are not intended or represented to be suitable for use or reuse by the Client or others on extensions of this project or on any other project. Any modifications by the Client to any of Kimley-Horn’s documents, or any reuse of the documents without written authorization by Kimley-Horn will be at the Client's sole risk and without liability to Kimley-Horn, and the Client shall indemnify, defend and hold Kimley-Horn harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefr om. Kimley-Horn’s electronic files and source code remain the property of Kimley-Horn and shall be provided to the Client only if expressly provided for in this Agreement. Any electronic files not containing an electronic seal are provided only for the convenience of the Client and use of them is at the Client’s sole risk. In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents prepared by Kimley-Horn, the hardcopy shall govern. 6) Intellectual Property. Kimley-Horn may use or develop its proprietary software, patents, copyrights, trademarks, trade secrets, and other intellectual property owned by Kimley-Horn or its affiliates (“Intellectual Property”) in the performance of this Agreement. Unless explicitly agreed to in writing by both parties to the contrary, Kimley-Horn maintains all interest in and ownership of its Intellectual Property and conveys no interest, ownership, license to use, or any other rights in the Intellectual Property to Client. Any enhancements of Intellectual Property made during the performance of this Agreement are solely owned by Kimley-Horn and its affiliates. If Kimley-Horn’s services include providing Client with access to or a license for Kimley-Horn’s (or its affiliates’) proprietary software or technology, Client agrees to the terms of the Software License Agreement set forth at https://www.kimley-horn.com/khts-software-license-agreement (“the License Agreement”) which terms are incorporated herein by reference. 7) Opinions of Cost. Because Kimley-Horn does not control the cost of labor, materials, equipment or services furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but not limited to the costs of construction and materials, are made solely based on its judgment as a professional familiar with the industry. Kimley-Horn cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Kimley-Horn's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. 8) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof, or upon thirty days’ written notice for the convenience of the terminating party. Kimley-Horn shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by Kimley-Horn as a result of such termination. 9) Standard of Care. The standard of care applicable to Kimley-Horn’s services will be the degree of care and skill ordinarily exercised by consultants performing the same or similar services in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by Kimley-Horn's performance of services, and it is agreed that Kimley-Horn is not a fiduciary with respect to the Client. 10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and Kimley-Horn, the risks are allocated such that, to the fullest extent allowed by law, and notwithstanding any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the aggregate, of Kimley-Horn and Kimley-Horn's officers, directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out of or in any way related to the services under this Agreement from any causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or implied, of Kimley-Horn or Kimley-Horn's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by Kimley-Horn under this Agreement or $50,000, whichever is greater. Higher limits of liability may be negotiated for additional fee. This Section is intended solely to limit the remedies available to the Client or those claiming by or through the Client, and nothing in this Section shall require the Client to indemnify Kimley-Horn. 11) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any consequential, incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits. 12) Construction Costs. Under no circumstances shall Kimley-Horn be liable for extra costs or other consequences due to unknown conditions or related to the failure of contractors to perform work in accordance with the plans and specifications. Kimley-Horn shall have no liability whatsoever for any costs arising out of the Client’s decision DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 Rev 06/2023 3 to obtain bids or proceed with construction before Kimley-Horn has issued final, fully approved plans and specifications. The Client acknowledges that all preliminary plans are subject to substantial revision until plans are fully approved and all permits obtained. 13) Certifications. All requests for Kimley-Horn to execute certificates, lender consents, or other third-party reliance letters must be submitted to Kimley-Horn at least 14 days prior to the requested date of execution. Kimley-Horn shall not be required to execute certificates, consents, or third-party reliance letters that are inaccurate, that relate to facts of which Kimley-Horn does not have actual knowledge, or that would cause Kimley-Horn to violate applicable rules of professional responsibility. 14) Dispute Resolution. All claims arising out of this Agreement or its breach shall be submitted first to mediation in accordance with the American Arbitration Association as a condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. 15) Hazardous Substances and Conditions. Kimley-Horn shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Kimley-Horn's services will be limited to analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. Kimley-Horn will notify the Client of unanticipated hazardous substances or conditions of which Kimley-Horn actually becomes aware. Kimley-Horn may stop affected portions of its services until the hazardous substance or condition is eliminated. 16) Construction Phase Services. a. If Kimley-Horn prepares construction documents and Kimley-Horn is not retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction observation, and the Client waives any claims against Kimley-Horn in any way connected thereto. b. Kimley-Horn shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, equipment maintenance and inspection, sequence, schedule, safety programs, or safety practices, nor shall Kimley-Horn have any authority or responsibility to stop or direct the work of any contractor. Kimley-Horn's visits will be for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will generally conform to the construction documents prepared by Kimley-Horn. Kimley-Horn neither guarantees the performance of contractors, nor assumes responsibility for any contrac tor’s failure to perform its work in accordance with the contract documents. c. Kimley-Horn is not responsible for any duties assigned to it in the construction contract that are not expressly provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for job site safety and its means and methods; that the contractor shall indemnify the Client and Kimley-Horn for all claims and liability arising out of job site accidents; and that the Client and Kimley-Horn shall be made additional insureds under the contractor’s general liability insurance policy . 17) No Third-Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to anyone other than the Client and Kimley-Horn, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and Kimley-Horn. The Client shall not assign or transfer any rights under or interest in this Agreement, or any claim arising out of the performance of services by Kimley- Horn, without the written consent of Kimley-Horn. Kimley-Horn reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If Kimley-Horn exercises this right, Kimley-Horn will maintain the agreed-upon billing rates for services identified in the contract, regardless of whether the services are provided by in-house employees, contract employees, or independent subconsultants. 18) Confidentiality. The Client consents to the use and dissemination by Kimley-Horn of photographs of the project and to the use by Kimley-Horn of facts, data and information obtained by Kimley-Horn in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, Kimley-Horn shall use reasonable care to maintain the confidentiality of that material. 19) Miscellaneous Provisions. This Agreement is to be governed by the law of the State where the Project is located. This Agreement contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous negotiations, representations, agreements, or understandings, whether written or oral. Except as provided in Section 1, this Agreement can be supplemented or amended only by a written document executed by both parties. Any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by Kimley-Horn. If Client requires Kimley-Horn to register with or use an online vendor portal for payment or any other purpose, any terms included in the registration or use of the online DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 Rev 06/2023 4 vendor portal that are inconsistent or in addition to these terms shall be void and shall have no effect on Kimley- Horn or this Agreement. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining provisions. The non-enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 5 Kimley-Horn and Associates, Inc. ____________________________________ Hourly Labor Rate Schedule Classification Rate Analyst $155 - $215 Professional $215 - $280 Senior Professional I $260 - $360 Senior Professional II $350 - $380 Senior Technical Support $170 - $265 Support Staff $125 - $150 Technical Support $150 - $180 Effective through December 31, 2023 Subject to adjustment thereafter External Reimbursable Expenses will be charged at 15% mark -up, or per the Contract Sub-Consultants will be billed per the Contract DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 12 Eagle County Prof Services Final 5/14 EXHIBIT B Eagle County Innovation and Technology Department 3rd Party Remote Access Policy DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 13 Eagle County Prof Services Final 5/14 EXHIBIT C Insurance Certificate DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or 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). 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 POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 8/28/2023 Edgewood Partners Ins.Center/Greyling 3780 Mansell Rd.Suite 370 Alpharetta GA 30022 Jerry Noyola 7702207699 7702207699 greylingcerts@greyling.com National Union Fire Ins Co of Pittsburg 19445 KIMLASS Allied World Assurance Co (U.S.)Inc.19489Kimley-Horn and Associates,Inc. 421 Fayetteville Street,Suite 600 Raleigh,NC 27601 New Hampshire Insurance Company 23841 Lloyd's of London 85202 1131005000 A X 2,000,000 X 1,000,000 X Contractual Liab 25,000 2,000,000 4,000,000 X X GL5268169 4/1/2023 4/1/2024 4,000,000 A A 2,000,000 X X X CA4489663 CA2970071 4/1/2023 4/1/2023 4/1/2024 4/1/2024 B X X 5,000,000 X 03127930 4/1/2023 4/1/2024 5,000,000 X 10,000 C C X N WC015893685 (AOS) WC015893686 (CA) 4/1/2023 4/1/2023 4/1/2024 4/1/2024 1,000,000 1,000,000 1,000,000 D Professional Liab B0146LDUSA2304949 4/1/2023 4/1/2024 Per Claim Aggregate $2,000,000 $2,000,000 Re:On Call Contract.Eagle County is named as an Additional Insured with respects to General Liability where required by written contract. Eagle County 500 Broadway Post Office Box 850 Eagle CO 81631 DocuSign Envelope ID: B6751320-7DF0-4396-B4D6-850C8CBB99D2