HomeMy WebLinkAboutbocc.con.061.1991 ��y ' ' �
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� A G R E S M E N T � .
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Betvlee�n .
PITRIN COIINTY� COLORADO
and " "
BARNARD DIINKELBERG � COMPANYi INC. �;•,r !
RE: Airport noiae related studies
i,,',��,.
DATE: Mi►y� 19 91
I
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TIiIS AGREEMENT by and between PITKIN COUNTY, COLORADO (herein �
cdlled "SPONSOR" ox' "Collnty")� d77d BARNARD DIINKELBERG & COMPANY� ��•'!,
INC., an Oklahoma Corporation, (herein called "CONSULTANT"), ; �,
WITNESSETH THAT for and in consideration of the terms, covenants, �
and conditions herein contained the parties have agreed and hereby ���'-�`
i.:.� .
;
agree as follows:
1. ENGAGEMENT OF CONSULTANT. SPONSOR hereby engages CONSULTANT
and CONSULTANT hereby agrees to perform services hereinafter
described in connection with the preparation of an FAR PART 150
STUDY and other airport consultant services. Selection of '
CONSULTANT concludes a Request for Qualifications for study ' �
consultants ("RFQ") heretofore initiated by the SPONSOR.
2. SCOPE. This Agreement contemplates the following scope of •
"! work: SN
�:
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(a) The following communications formed a material part of :�
the SPONSOR's selection of the CONSULTANT in the RFQ process �
and also 'identify the general scope, budget, local budgetary
limitations, grant and task phasing objectives of the SPON50R �
contemplated by this agreement, and are incorporated herein �
for such purposes: CONSULTANT's transmittals to Special
Counsel Dwight K. Shellman, Jr. dated February 6, 1991 i
(entitled "SCOpe of Services", includinq attached ultimate
Program of Services classified by element and task numbers);
February 15, 1991 (entitled "Pitkin County Airport FAR 150
Study"); February 15, 1991 (defining a first phase limited
scope of services by reference to the aforementioned task
numbers, in er alia); and February 22, 1991 (as to fee for
� proposed winter noise measurement sequence) . Unless otherwise ' '�
specified in subsequent joint work orders or SPONSOR's notices *
to proceed with specific tasks, SPONSOR's requests and '�S
CONSULTANT's services will be consistent with the foregoing :�,�1. ., -
task references,and budget and phasing objectives. �1i
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(b) 1991 Winter noise measurement sequence work referred to ),.!; .
above was partially completed by CONSULTANT under a notice to r'
proceed (based upon exchange of budget and task defining -
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communications between the parties' respective project co-
- ordinators) pri.or to the date of execution of this oontract,
but is included within the scope hereof. '
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n (c) Other work to be pertormed by CONSULTANT which is � .
consistent with 2(a) above shall be as specified by SPONSOR's .
notices to proceed with the specified tasks or services which -
are documented in a manner which is substantially similar to �:�:
- the task and budget definition exchange and notice to proceed ' -
- procedure utilized in 2(b) above, or by subsequent joint work ;-,:r �°
orders executed by the parties.
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(d) Tasks not contemplated by, or which are outside of the ': 1 :�
scope of services reflected in Z(aj above, or which will
cwnulatively cause the overall Program of Services budget �
estimated therein to be exceeded, will be identified in
advance of proceeding by the CONSULTANT to permit the 5 "'
SPONSOR's project co—ordinators to consult With the SPONSOR's �
project committee, and with the SPONSOR's Board, (eg because � • . �
of possible need for formal amendments to this aqreement, or ' s�
_ to revise applicable budgets, or to seek appropriations or �;"
� the need for SPONSOR's compliance with procurement codes or �',:
� state contracting regulations). See also sections 9, 19, 24 `""
� and 27 hereof. � "
CoNSULTANT will perform and carry out in a proper manner the work
specified in accordance with this contract.
3. COMPLIANCE WITH APPLICABLE REGULATIONS. Unless otherwise
a directed by SPONSOR, all Federal Aviation Administration ("FAA") �• �
rules and regulations and other federal, state and local Zaws �
_ applicable to the accomplishment of this planninq project will be �
- complied with in all respects. .
� 4. PROVISION OF PERSONNEL. CONSULTANT represents that CONSULTANT f'
+ has or will secure at CONSULTANT's own expense all personttel �
� required in performing the services under this contract. Such
, � personnel shall not be employees of the SPONSOR. All services r
i required hereun@er will be performed by the CoNSULTANT or under
:� CONSULTANT's supervision and all personnel engaged in the project �t,
shall be fully qualified and shall be authorized under state and f
local law to perform said services.
� 5. TERM. Services of the CONSULTANT are to commence as soon as
! feasible after the execution of this Agreement and sha11 be '
# completed as mutually agreed, or until terminated pursuant to
.. _�
Section 22 hereof. '
( 6. PAYMENT. SPONSOR will pay CONSULTANT pursuant to Section 23 �;
� hereof. l ,
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7. BILLINGS. All billings for services performed under this
' Agreement shall be made by �he CONSULTANT in accordance with • •
Section 23 hereof. '
,, 8. TERMINATION:DEFAULT. This agreement is suhject to termination
' for default or for convenience of the SPONSOR pursuant to Section •
22. -
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9. CHANGES. The parties contemplate that changing circumstances
may require changes in the scope of services and budget allocations
contemplated in Section 2 above. In such event, changes may be '�"�''-•� ,
authorized by joint agreement of CONSULTANT and SPONSOR, subject to -
the provisions and within the limitations referred to in Section 24 �
�
and 27. ' .
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�� 10. CONFLICTS OF INTEREST. No officer, member of employee of the ` `
SPQNSOR who exercises any functions or responsibilities in the ( ;,•
review of or approval of the undertaking or carrying out of this � ,�
project, shall (a) participate in any decision relating to this
Agreement which affects CONSULTANT's personal interest or the ;,_;,
interest of any corporation, partnership, or association in which "F;.
- ' CONSULTANT, directly or indirectly, has an interest (b) have any
interest, direct or indirect, in this Agreement or the proceeds
; thereof. Sections 19 and 2o ir.clude related provisions of the
SPONSOR's procurement code and state statutory contracting
restrictions.
11. ASSIGNABILITY. The CONSULTANT shall not assign any interest {
in the Agreement and shall not transfer any interest in the same
(whether by assignment or novation), without the prior written
consent of the SPONSOR thereto: provided, however, that claims for
money due or to become due to the CONSULTANT from the SPONSOR under c�;:
� � this Agreement may be assigned to a bank, trust company or other
; financial ins�itution without such approval. Notice of any such
• assignment of transfer shall be furnished promptly to the SPONSOR. ;��
,� 12. CONFIDENTIALITX' ATTORNEY WORK PRODUCT•LITIGATION SUPPORT. ����=
�� !
• � (a) At the time of initiation of this Aqreement, funds '
; budgeted and appropriated to pay for CoNSULTANT's services are i� �
limited to local tax sources only, because potential disputes exist
between SPONSOR and the FAA and others which may result in court, ?_'., �, .
administrative or legislative adversary proceedings. All reports,
information, data, or work product given to or prepared or
assembled by the CONSULTANT under this Agreement is confidential '-�
and shall not be taade available to any individual or organization
by the CONSULTANT without the prior written approval af the
. SPONSOR. �!:'ti�`' •
(b) CONSULTANT agrees that services to be performed under ' i1. � -
this Agreement will be performed under the day to day general •_`;� ' �
supervision and direction of SPONSOR's legal counsel, County ;:�:'
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Attorney Timothy Whitsitt, and Special Counsel Dwight K. Shellman, �:;.�
' Jr.,who are elsewhere designated as SPONSOR's projeat co-ordinators • '
and project managers with respect to CONSULTANT's services pursuant ` ''
to this agreement. Such work product shall also constitute attorney .
work product of the SPONSOR, entitled to privileges of
confidentiality. attaching thereto, unless otherwise expressly .
waived in writing by the SPONSOR. .
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(c) CONSULTANT and SPONSOR acknowledge that it is the
SPONSOR's desire and intention to seek to recover by legislative
action, and/or in appropriate court or other dispute resolution !� �`'.'�,
proceedings, Prom appropriate third parties (which may take the ��
form of damages and/or FAR part 15o funding, or types of ;:_J
reimbursement) for portions of GoNSULTANT's costs and eacpenses paid ?
by SPONSOR to CONSULTANT under this Agreement. Such proceedings ;f
raay also require testimony in support of the study products 'i '.,
contemplated by this agreement. CONSULTANT, at the request of �;: '
SPONSOR shall make availabZe (at the same hourly or per diem rates, � �
and expense reimbursement practices utilized for the billing oE �• ��
work to be undertaken hereunder) such of CONSULTANT's and
subcontractor project personneZ as SPONSOR shall request for �,,+.�• .
litigation or other dispute resolution support purposes.
(d) CONSULTANT shall take all steps reasonably appropriate to
cause the work product and the work activities of CONSULTANT to be
kept confidential by its employees and subcontractors and their
' personnel, and to cause such personnel to be available for � � .
� litigation or dispute resolution support purposes contemplated by
this Section 12.
. 13. REQUIRED FAA DISCLAIMERS. All docwnentation which the SPONSOR
releases for publication to the public or third parties, and which
��
is subsequently funded in part by the FAA shall carry the followinq �'
; or similar notation: ��
`! Preparation of this document was financed in part by a ,��'�
grant from FAA under Section 505 of tha Airport and 1
Airway Improvement Act of 1982. This document does not
necessarily reflect the views of FAA.
14. DOT/FAA TITLE VI ASSURANCES. During the performance of this
contract, CONSULTANT, for itself, its assiqnees and successors in .
interest agrees as follows:
� a) Compliance with Regulations. CONSULTANT sha11
comply with the Regulations reZative to nondiscrimination in
federally assisted programs of the Department of Transportation
(DOT) Title 49, Code of Federal Regulations, Part 21, as they may �t � '
be amended from time to time (hereinafter referred to as the
Regulations) which are herein incorporated by references and made �4'' "" �
a part of this contract. ,
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b) Nondiscrimination. CONSULTANT, with regard to the
work performed by it during the contract, shall not discriminate on "
the grounds of race, color, or national origin in the selection and ' '
� � retention of subcon�ractors, including procurement of materials and ' ,
leases of equipment. CONSULTANT shall not participate either
directly or indirectly in the discrimination prohibited by Section �
21.5 of the Regulations, including employment practices when the
contract covers a program set forth in Appendix B of the � -
Regulations.
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c) Solicitations for Subcontractors, Including .
Procurement of Materials and Equipment. In all solicitations '. �#�`��`'�
either by competitive bidding or negotiation made by consultant for "
work to be performed under a subcontract, including procurement of '� `
materials or 2eases of equipment, each potential subcontract or ;�j
, supplier shall be notified by consultant of obligations under this ,.�.
contract and the Regulations relative to nondiscrimination on the f�- , i �
grounds of race, color, or national origin. ��
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d) Information and Reports. CONSULTANT shall provide �Ri ?.
all information and reports required by the Regulations of �«�:`;
directives issued pursuant thereto and sha.21 permit access to its � '' '''~
books, records, accounts, other sources of information, and its
facilities as may be determined by sponsor or FAA to be pertinent `
to ascertain compliance with such Regulations, orders, and
instructions. Where any information required of a contractor is in
the exclusive possession of another who fails or refuses to
furnished this information, consultant shall so certify to sponsor
or FAA and shall set forth what efforts it has made to obtain the ' ' '
information.
� e) Sanctions for Noncompliance. In the event of •
- consultant noncompliance with the nondiscrimination provisions of ��`
this contract, sponsor shall impose such cantract sanctions as it `,'`
may determine to be appropriate, including, but not limited to:
� , �� .
. ( (1) withholding of payments to consultant under the
contract until the contractor complies, and/or ;�,
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(2) cancellation, termination, or suspension of the
� contract, in whole or in part.
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� f) Incorporation of Provisions. CONSULTANT shall
; include the provisions of Paragraph 14(a) through (d) above in
� every subcontract, including procurement of materials and leases to
� equipment, unless exempt by the regulations or directives issued
I pursuant thereto. CoNSULTANT shall take such action with respect i
( to any subcontract or procurement as sponsor or FAA may direct as ! ���,
' a means of en£orcing such provision including sanctions for ;1t��;
, noncompliance. In the event consultant becomes involved in, or is ` '
, threatened with, litiqation consultant may reqt�est the sponsor to �t� , _
enter into such litigation to protect the interests of SPONSOR_ �1.� �
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CONSULTANT may also request the United States to enter into such
litigation to protect the interests of the united States.
a 15. DOT/FAA MINORITY BUSINESS ENTfiRPRISE (MBE) ASSURANCES
, .
(a) Policy. It is the policy of DOT that minority .
business enterprises as defined in 49 CFR Part 23 sha11 have the
maximwn opportunity to participate in the performances of contracts
Pinanced in whole or in part with federal funds under this ,
agreement. Consequently, the MBE requirements of 49 CFR Part 23
apply to this agreement. ��'r '
(b) MBE Obligation. CONSULTANT agrees to ensure th,at _�•s•=•-
minority business enterprises as defined in 49 CFR Part 23 have the �� '`-�
maximum opportunity to participate in the performance of contracts ;w.. .
and subcontracts financed in whole or in part with federal funds ':+�
provided under this agreement. CONSULTANT shall take all necessary
and reasonable steps in accordance with 49 CFR Part 23 to ensure ;�s
that minority business enterprises have the maximum opportunity to !' -`
complete for and perform contracts. CONSULTANT shall not F� :;
discriminate on the bas3s of race, color, national origin, or sex <�; ;
in the award and performance of DOT-assisted contracts. �: ;:`
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16. CLEAN AIR ACT COMPLIANCE. CONSULTANT agrees to comply with '+ ;;
all applicable standards, orders, or regulations issued pursuant to
the Clean Air Act of 1970 if this agreement exceeds $100,000.
17. PROJECT CO-ORDINATORS PROJECT MANAGERS. During the
performance of the Agreement, Ryk A. Dunkelberg, of BARNARD
DUNKELBERG & COMPANY, Inc., shall act as overail coordinator �
between the CONSULTANT and the SPONSOR. The SPONSOR's Co-
ordinators shall be County Attorney Timothy Whitsitt and Special
• i Counsel bwight K. Shellman, Jr. The parties may jointly select
others to act in the place of any of the foregoing.
�.
18. NOTICES. Unless modified by notice pursuant hereto, notices �
. ,. 1 to a party shall be addressed as follows: Notices to SPONSOR shall
be deemed given by written notice, personally served or sent by
' registered letter addressed to SPONSOR, to the attention of Timothy r
� Whitsitt, Pitkin County Attorney, Courthouse Plaza, Aspen, Colorado
81611 and Dwight R. Shellman, Jr., Special Counsel, Shellman & p
� ornitz, P.C., 100 S. Spring Street, �2, Aspen, Coiorado 81611. r
: Notice to CoNSULTANT may be in writing personally served upon the i
i coordinator above specified or shall be sent by registered or �'..
,_� certified mail to BARNATZD DUNKELBERG & COMPANY, Inc., to the �, ,
attention of Ryk Dunkelberg, Cherry Street Building, 1616 East 15th
L� Street, Tulsa, Oklahoma 74120. � ,
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19. COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE
CONTRACTING LAW. -
.� ',. '
(a) The CONSULTANT acknowledges that this Agreement is ' 1 '
entered into subject to the requirements of the '�Pitkin County ' � ��
Procurement Code," (Section 8.5 of the Pitkin County Home Rule
Charter, Resolution No. 82-37, April 12, 1982). As such, the -
CONSULTANT agrees to comply with all requirements of said � ��:
Procurement Code, and such requirements are incorporated herein by �•
this reference (copies of the Code are available from the County `' ''
for a nominal charge). The CONSULTANT also acknowled3es that this
: Aqreement is subject to applicable state contracting law including, {���.�,'';�'�'r,`
without limitation, C.R.S. Sections 38-26-101 et seq., 24-92-101 et
seq., 43-2-101 et seq., 43-2-201 et seq. �`.�
(b) The CONSULTANT shall immediately notify the County �
Manager in writing of any violation of said Code or statutes by the �' , ,
County's employees or agents, which violation(s) is known or shauld i� .:
have been known by him, and failure to so notify the county of any - '
violations(s) within five (5) days of knowledge of such violations �' �
shall be considered a breach of this Agreement. Further, failure �' �'�
to notify the County of any violation of the Procurement Code or •���',
statutes within five (5) days of knowledge sha12 be deemed as a
waiver of any action or defense that the CoNSULTANT may have
against the County by reason of such violation of the Procurement
Code or statutes.
20. WARRANTIES AGAINST CONTINGENT FEES. GRATUITIES, KICKBACKS AND �
CONFLICT OF INTEREST. � ! •
� (a) Covenant Against Contingent Fees. The CONSULTANT °
, warrants that no person or selling agency has been employed or ,
retained to solicit or secure this Contract upon an agreement or �#
understanding for a coaunission, percentage, hrokerage, or �
contingent fee, excepting bona fide employees or bona fide ;�
established commercial or selling agencies maintained by the �
� . CoNSULTANT for the purpose of securing business. �
� (b) Gratuities Prohibited. The CONSULTANT agrees not to ��
jgive any employee or former employee of Pitkin County a gratuity or
any ofPer of employment in connection with any decision, approval,
, disapproval, recommendation, preparation of any part of a program `
� requirement or a purchase request, influencing the content of any
' specification or procurement standard, rendering of advice, ' •
1 investigation, auditing, or in any other advisory capacity in any
` i proceeding or application, request for ruling, determination, claim
j or controversy, or other particular matter, pertaining to this �. • ��
� Contract or Subcontract, or to any solicitation or proposal
+ ther.efor. "
{ ('
, (c) Gratuity means a payment, loan, subscription, advance
� deposit of money, services, or anything of more than nominal value, � ��
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present or promised, unless consideration of substantia2ly equal or ��"��''�='
greater value is received.
,� (d) Kickbacks Prohibited. St shall be a breach of Contract
i for any payment, gratuity, or offer of employment to be made by or
on behalf of a subcontractor under a contract to the prime ' '. ,
contractor or higher tiez subcontractor or any person associated ,
therewith, as an inducement for the award of a subcontract or
order. The CONSULTANT is prohibited from inducing, by any means, �
` any person employed under this Contract to give up any part of the ?:h;
! corapensation to which he/she is otherwise entitled. The CONSULTANT "
...
shall comply with all applicable local, state and federal :;°:�. "'
"ahti-kickback" statutes or regulations.
:'•;;:.:..;. .
i (e) Prohibited Conflict of Interest. No official, officer, 's. 'r'�.�j`
employee or representative of the County during the term of this �;
Contract or one (i) year thereafter shall have any interest, direct ,,�
or indirect, in this Contract or the proceeds thereof. (Additional
restrictions on present and former employees of County are found in r '�
Article 7 of the Procurement Code). � .
• ` (f) Subcontract Clause. The prohibitions against contingent
{ fees, gratuities, kickbacks and conflict of interest prescribed in ��-
j this Contract shall be made a condition of conspiouoL�ly set forth ;z;;
' in every subcontract and solicitation therefor. y,;.
(g) Conspicuously means written in such special or ��"f .
distinctive format, print, or manner that a reasonable person I '
against whom it is to operate ought to have noticed it. 1.
'� �
�� (hj Remedies. In addition to other remedies it may have for '
� ; breach of the prohibitions against contingent fees, gratuities, ti,
� kickbacks and conflict of interest, the County shall have the riqht �:
� to:
p.i . •
� (1) Terminate this Contract without liability by the ;
�� County; ,
:t f
-".' (2) Aebar or suspend the offending parties from being a
:��: consultant or sub-consultant under County cpntracts;
:�x ;
`; (3) Deduct from the contract price or consideration, or
otherwise recover, the value of anything transferred or received by `
°''1 the CONSULTANT; and
•. �") (4) Recover such value from the other offending
;;,� parties.
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21. LOCAL ASSURANCES AS TO EOUAL EMPLOYMENT OPPORTUNITY AND .
yF MINORITY/WOMEN BUSINESS ENTERPRISES (MSE/WBE1. , .''
(aj In connection with the execution and administration of •
this Contract, and any subcontracts, the CONSULTANT shall not
discriminate against any employee or applicant for employment ' �
because of race, religion, color, sex, national origin, age, ;'�w_
handicap or status as a veteran. Affirmative action to prevent ' .
such discrimination shall include, without limitation, employment, �.'t
. upgrading, demotion or termination, rates of pay, or other forms of
compensation, and selection for training, including apprenticeship. ; •
���:•�,y`�.;.
:
� (b) In connection with the performance of this Contract, the 1
CONSULTANT wiZl cooperate with the County in meeting the County's ( ,
; commitments and goals with regard to the maximum utilization of `•
� minority and women business enterprises and will use its best
' efforts to ensure that such business enterprises shall have the � � '•,r
_ maximum practicable opportunity to compete for employment and/or x �
subcontract work, if any, under this contract. �'`
�'�',
n t j-;•
(c) The CONSULTANT will furnish all necessary information and ���
f reports and will permit acaess to its books, records, and accounts
�
by Pitkin County for purpose of investigation to ascertain
compliance with the nondisczimination/affirmative action provisions �
of any resultant contract. �
�.
� (d) Employment Data and Affirmative Action Plan. If =�
���! requested, the CONSULTANT agrees to submit on an Employment Data �
- . � Form to be provided by the County, the data showing the utilization
' of disadvantaged persons, minorities and women by job .category i•
' + within its organization. Where the CONSULTANT has fi£ty (50) or � •
� more employees ar it is participating in contracts with the County
whiah exceed Fifty-Thousand ($50,000.00) Dollars, an Affirmative
,� Action Plan must be submitted to the County when requested by the
` County Attorney's Office within ten (lo) days after seleation or �
request. `
i
(e) Noncomplianee. In the event of the CoNSULTANT's
noncompliance with the nondiscrimination/affirmative action
provisions of any resultant contract, Pitkin County shall impose
such contract sanctions as it may determine to be appropriate,
�� including, but not limited to: (
, :.'��� (i) Withholding of payments under the Contract until
the CONSULTANT complies, and/or „ '
i (2) Cancellation, termination, or suspension of the t:
.� Contract, in whole or in part. � '
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- 22. TERMINATION FOR DEFAULT OR FOR CONVENIENCE OF COUNTY "
� (a) The perforntance of work under the Contract may be
terminated by the County: ' �
(1) Whenever the CONSULTANT shall default in ._
performance of this Contract in accordance with its terms, and i�r
fails to cure or show cause why such failure to perform should
be excused within ten (l0) days (or longer as the County may ��:"x:�
allow or shorter, but not less than three (3) days, for failure ? '���
to provide proof of insurance or maintenance of any dangerous �
condition) after hand-delivery or mailing to the CONSUI,TANT
,y of a notice specifying the default. If mailed, said notice
shall be sent by certified mail, return receipt requested, to � ,
the address specified herein for the CONSULTANT. '
i';
� The CONSULTANT shall not be in default by reasons of �R
� an failure in �!�°
� y performance of this Contract in accordance ;tr
- with its terms if such failure arises out of causes beyond ?�,•_,
' - ` � the control and without the fault or negligence of the °t;:; .
CONSULTANT. Such causes may include, but are not restricted to, �•'�`�
� acts of God, natural disasters, strikes, or freight E..
r.
embargoes, but in every case the failure to perform must be
beyond the control and without the fault or negligence of the �
CONSULTANT. Upon request of the CONSULTANT, the County shall �,
! ascertain the facts and failure, and, if the County shall ��
' determine that any failure to perform constituted a valid
:;. commercial excuse, the performance shall be revised accordingly
and notice of default withdrawn; or
" (2) Whenever for any reason and in its sole discretion �
- 'i the County shall determine that such termination is in its
± best interest and convenient.
3
! (b) Notice of Termination. In the event of termination for �'
� i the convenience of the County, the County shall deliver to the
� CONSULTANT a written notice of termination, specifying the �•
7 reasons therefor, and the effective date of such termination.
� The effective date shall not be earlier than the date of �
hand-delivery or the date of mailing of the notice, plus three
(3) business days. The notice of termination shall be sent .
regular first-class mail to the address of the CONSULTANT herein
provided.
, � (c) Termination Procedure. After the effective date of the
j notice of termination for default or for the convenience of the ?�'�;;
County, unless otherwise directed by the County, the CONSULTANT i�
; shall: f
f�' "' -
j (1) Stop work under the Contract on the date specified �s� ;
in the notice of termination. I:'
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(2) Place no further orders for materials, services or
facilities.
� (3j Terminate all orders and subcontractors to the
� extent that they relate to the performance of work terminated � "
by the notice of termination. ` �'
(4) With the approval or ratification of the County, -
settle all outstanding liabilities and all claims arising out -
of such termination on orders or suboontracts, the cost of
which would be compensab2e or reimbursable in whole or in ''�r .
' part in accordance with this Contract. �� ,,. .
(d) Termination Payment. After the effective date of a � �� '�I,
notice of termination for the convenience of the County, the �
CONSULTANT shall submit to the County CONSULTANT's termination
claim in the form of a final invoice in accordance with the
provisions in Section 23 ("Payment Procedures"), including costs � , ,
! incurred and profit earned to the date of termination (but not � .. ,
future profit, which shall not be paid), and costs incurred because t � �
- � of termination, which termination costs shall not exceed 10$ of the �!.
� total amot�nt of proposaZ; provided, however, that in the event of ��:,
� default by the CONSULTANT, no costs incurred because of termination ���'.
: shall be paid to the CONSULTANT and any costs paid shall not be a 5.+-
� waiver of any claim, counterclaim or setoff by the County against � � ,
the CONSULTANT on account of any default. Such claim must be �
submitted promptly, but in no event later than thirty (30j days �
from the effective data of termination, unless one or more �;
extensions are granted in writing by the County. Upon the
� CONSULTANT's failure to submit a claim in the time allowed, the `+ •
1,Y County may review the information available to it and determine the �
' . ? amount due the CONSULTANT, if any, and pay the CONSULTANT the �
, ; amount as determined. �. ,
;f (e) Termination Settlement. Subject to Paragraph 22(d),
the CONSULTANT and County may negotiate the whole or any part of
the amount or amounts to be paid, upon termination for default or +
" ' � for the convenience of the County. ;
i� �
(f) Remedies. The CONSULTANT shall have the right of appeal
from any determination made by the County under �'Termination for
Default or for Convenience of County;" except that if the
CONSULTANT has failed to submit CONSULTANT's claim within the time �
provided in Paragraph 22(d), above, and has failed to properly
.`� request extension, CoNSULTANT shall have no such right of appeal. �
Tn any case where the County has made a determination of the amount
` � f� due under Paragsaphs 22(d) or 22(ej above, the County shall pay the -
CONSULTANT: (1) the amount the County has determined if there is
no right to appeal or if no timely appeal has been taken, or (2j + �
� the amount finally determined on such appeal if an appeal has been f
14 taken. (
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(g) Method of Appeal. If the CONSULTANT disagrees with the
County�s determination under Paragraphs 22(e) or 22(f), CONSULTANT "'
can appeal this decision in writing to the County. Such appeal �' �,
�` � must be made within twenty (20) days of receipt in writing of the ' �
�.
County's determination. The County shall have twenty (20) days in
which to respond in writing to the appeal. The County's response ••
shall be final and conclusive unless within thirty (30) days from �
the date of receipt of such response the CONSULTANT submits the . •. .=--
dispute to a court of competent jurisdiction. �
� .
23. PAYMENT PROCEDURE.
:• ��,.
• r ,'
(a) Once each four (4) weeks, or whenever convenient to • ,
both the County and the CONSULTANT or as otherwise provided in '` ` '
the contract doauments, the CONST]LTANT shall submit to the County ';��
a certified Application For Payment for percentage of work � .�� '
completed. The form of the application for payment shall be as .
specified by the county from time to time. ;g� .
i�
(b) The County shall review and approve or disapprove each ``_ii'; r
� application with reasonable promptness. Payment of approved
i items, and written notice as to the reasons for unapproved items, '� �"''`•�
� ,: .
; shall be made within thirty (30) days after approval or "'
disapproval. `f`
; (c) Prior to a final payment under this Contract, the
CONSULTANT shall eXecute and deliver:
(1j An assignment to the County of refunds, rebates, ` '• '
credits or other amounts, including the interest thereon,
properly allocable to cost for which the CoNSULTANT has been
reimbursed by the County under this Contract; .
- . f`��'; -.
(2) A reZease or waiver discharging the County for all '+:4"
liabilities, obligations and claims arising out of or under i: j
'; this Contract on behalf of the CONSULTANT (and CONSULTANT's
, 3 successors and assigns) and of all sub-consultants and suppliers, ;,;_�
and an indemnity protecting the County against any such
liabilities, obligations and claims; '�� �
� (3) An assignment to the County for a11 warranties for i�
' products and operations provided under this Agreement; and ' �
;' :
� (4) A written representation from the CONSULTANT in a t.� y' '
� form agreeable to the County that the services provided have
met the standards for the profession in the Aspen and Denver
� Metropolitan areas. "
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24. �NTEGRATION AND MODIFICATION= ' :
� . .
(a) This Contract constitutes the full and complete
agreement of the parties and supersedes or incorporates any prior � •
written and oral agreements of the parties. In addition, the
. CONSULTANT understands that no County official or employee, other � -
than the Board of County Commissioners acting as a body at a `;•„r�"
Board meeting, has authority to enter into a contract or to
modify the terms of this contract on behalf of the County. Any .
:.�,.y....-
such cantract or modification to this contract must be in writing :i��,�I` '
and be executed by the parties hereto.
(b) With respect to change orders under the Contract, the
County and the CONSULTANT shall process and approve/disappzove �
requests for change orders as otherwise provided in this Contract, '
subject to the requirements of the Procurement Code and � �
' the Finance Office. ? �'
r.
-„ 25. Tndemnitv/Insurance. ��`
,,i,
� a The CONSULTANT � "
: ( ) (including, by definition here and '
? hereinafter, its officials, employees, agents, representatives,
sub-consultan�s and suppliers), shall and hereby does release,
discharge, indemnify and hold harmless the County of Pitkin and
its officials, employees, agents and representatives from and
against liability for any claim, demand, loss, damages, penalty, 4'
judgment, expenses, costs (including costs of investigation and � '• '.
defense), fees (including reasonable attorney and expert witness
fees) or compensation in any form or kind whatsoever for any
; bodily injury, death, personal injury or property damage arising •
, � out of or in connection with any intentional act or negligent
act, error or omission by the CONSULTANT, and for any
� consequential liability alleqed to accrue against the County on �'
i account of the CONSTJLTANT's acts, errors or omissions; provided, �
„ � however, that such indemnity shall not be construed as an
� indemnity for bodily injury or property damage arising from the �.
,� negligence of the County or its employees. �,
� (b) The CONSULTANT further shall investigate, process, i
respond to, adjust, provide defense for and defend, pay or settle
( all claims, demands, or lawsuits zelated hereto at its sole
j expense and shall bear all other costs and expenses related '
i thereto, even if the claim, demand or lawsuit is groundless,
� false or fraudulent.
� �'' '
� (c) To fund this indemnity, in whole or in part, the :;
CONSULTANT shall secure and maintain for the term of its
contractual relationship with the County such insurance policies, � �
� from companies licensed in the State of Colorado, as will protect
� itself the Count �' �
; , y (with the County named as additional insured � �
13
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to the extent permitted by law or contract) and others as ', ,_'
;x ' specified, from claims for bodily injuries, death, personal • �
': injury or property damage, which may arise out of or result from
the CONSULTANT's acts, errors o� omissions. The following ,
insurance coverage, at or above the limits indicated and
including such endorsements as are indicated by an "X", are ,
required:
�, .
� (1) Statutory Workman's Compensation: Colorado statutory
Minimums �".�•:.�"' -
�'�.�.
� (b) Commercial General Liability: .
: Bodily Injury/Propexty Damage j�{
� Combined Single Limit: $1,000,000 i�� ,
; Endorsements: I
x Comprehensive Form if'
s ,,
x Premises/Operations f
� x Contractual i+ „�� .
- (Hold Harmless Coverage) �Ai�
` Underground, Explosion and i:i,.,,.
- Collapse Hazard �'!�i_;;, .
x Independent Contractors/
CONSLJLTANTs and Sub-consultants, if such are
� used in the project
. Underground, Explosion and
Collapse Hazard
i x Personal Injury, With Employment Exclusions ,
�
Deleted
- . � (c) Comprehensive Motar Vehicle Liability Insurance:
t Bodily Injury/Property Damage ; '
� Combined Single Limit: $1,000,000 r,
� Endorsements:
� x Any Auto +
s x All Owned Autos ��
• '<i x Hired Autos '
x Nor►-Owned Autos �
x Garage Liability
� (d) Special Coverage (check as appropriate): a
; Professional Errors and Omissions
; Insurance:
( Each Occurrence Not Available
. ' � Aggregate Not Available
x �':`1.
(d) To provide evidence of the required insurance
coverage, copies of Certificates of Insurance in a form C� ' �
� acceptable to the County sha11 be filed with the County (through
I the Project Manager) no later than ten (10) calendar days prior �{_ '` � �=
� to commencement of operations affecting the County. Failure to , j
file or maintain acceptable Certificates oE Insurance with the �:4
j �.
ia ���
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1.�.:l, �a�:'siY, 4�_��.,�� / .� t w�.-� �vE��;•��'��e ��' �� y�'i.-''btl�(�^ r��- - /'Cy�,. �:
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• ���';����
_ • County is agreed to be a material breach of any contract and _
�- grounds for rescission or termination. These Certificates of
Insurance shall contain a provision that coverage afforded under ' '
�� the policies will not be canceled or materially altered unless � .
at least thirty (30) caiendar days prior written notice by
certified mail, return receipt requested (effective upon proper � �
mailing), has been sent to the County (through the Project
Managezj . -
_•:`y .•.
� (1) In addition, these Certificates of Insurance shall
contain the following clauses: -';.'•.•,.��•�,.,'
# �;�
(a) The CONSULTANT�s underwriters and insurers waive " .
right of reaovery or subroqation against the County of i.�
Pitkin, it being the intention of the parties that the �.
insurance policies described in the Certificates shall be ._f
priraary coverage for any and all losses covered by the (; . %
above-describe8 insurance. To the extent that the County's � ;
insurer(s)(s) may become liable for secondary or excess �, A
_ � coverage, the County's underwriters and insurers waive right I�,', �'�
� �� of recovery or subrogation against the CONSULTANT. �'`��-
� ''''
� E I• .
! (b) The clause "other insurance provisions," in a
policy in which the County of Pitkin holds a Certificate,
sha21 not apply to the County oP Pitkin.
j
+ (c) The insurance companies issuing the policy or
i policies hereunder shall have no recourse against the County of '
Pitkin for payment of any premiums or for assessments under � �• "
I aay form of policy.
, i
; (dj Any and all deductibles in the above-described i •
- i insurance policies shall be assumed by and be for the amount
` of, and at the sole expense of the CONSULTANT. �
i (e) Location ot operations shall be: °all operations ��
• �;j and locations at which work for the referenced Project is being
' done."
��.
# (e) Certificates of Insurance for all renewal policies
shall be delivered to the Project Manager at least fifteen (15)
; days prior to a policy's expiration date except for any policy
� expiring on the expiratian date of this Agreement or thereafter.
�
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26. RECORDS. The CONSULTANT shall maintain comprehensive,
'� complete and accurate books, records, and docnments concerning
its performance relating to this Project for a period of three ' '�.
(3) years after final payment on the Projeat and the County shall �
have the right within the three-year period to inspect and audit
these books, records and documents, upon demand, in a reasonable �•
, manner and at reasonable times, for the purpose of determining,
by accepted accounting and auditing standards, compliance with " -
all provisions of the Contract and applicable law. ;•;:�.���'
27. }iNNUAL APPROPRIATIONS. If the contract awarded as a ,';.,,..,. -
result of a bid extends beyond the calendar year, nothing herein ;� 7`.�'�
shall be construed as an obligation by the County beyond any
amounts that may be, from time to time, appropriated by the
County on an annual basis. It is understood that payment under .�A�
, any contract is conditional upon annual appropriation of funds by � �"�:t
said governing body and that before praviding services, the s'�. : .
CONSULTANT, i� CONSULTANT so requests, will be advised as to the ',;i
. " status of funds appropriated for services or materials and shall ` t�
not be obligated to provide services or materials for which funds ;�1; ;'
have not been appropriated. ^' '
,.
;�';:.
F ..
28. SUCCESSORS AND ASSIGNS. This Agreement and all of the
covenants hereof shall inure to the beaefit of and be binding "
i upon the County and the CONSULTANT respectively and their agents,
representatives, employees, successors, assigns and legal
representatives. Neither the County nor the CONSULTANT shall
have the right to assign or transfer its interest or obligations '
hereunder without the written consent of the other party, which � '
consent shall not be uhreasonably withheld.
i �
. �
29. THIRD PARTIES. This Agreement does not and shall not be �
deemed or construed to confer upon or grant to any third party or
! parties, except to parties to whom CONSULTANT or County may �
, assign this Agreement in accordance with the specific written
permission, any rights to claim damaqes or to bring any suit, M�
action or other proceeding against either the County or
i CONSULTANT because of any breach hereof or because of any of the ���
j terms, covenants, agreements or conditions herein contained. �
i 30. AGREEMENT MADE IN COLORADO. The parties agree that this
Agreement was made in accordence with the laws of the State of
� Colorado and shall be so construed. Venue is agreed to be ��,
\ � exclusively in the courts of Pitkin County, Colorado.
� 31. ATTORNEY'S FEES_ In the event that legal action is
' necessary to enforce any of the pravisions af this Agreement, the �'� ' `
prevailing party shall be entitled to its costs and reasonable
attorney�s fees.
`
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32. DATE OF DELIVERY OF MAI .D NOTICES Unless otherwise provided j
in the Contract Documents, all notices under the Agreement shall be t �
sent certified mail, return receipt requested, and shall be � ' �
` effective upon receipt or three (3) business days after maiZing, � ' •:;_
i whichever is first. !
: ;:•:� .'
TN WITNESS WHEREOF, the g,arties have executed this Agreement at ,
� Aspen, Colorado, this �61� day of p4ay; 1991. �,T�.,
`•. �' ��' :,.. . ,
I ,ti.: ,. .
� PITKIN COUNT - APPROVE : � �
BY� i � � / �. � ;I�� ;`�,
' CHAI CO T RNEY � `;� � '
' / ��
� ATTEST� � „ A .�
.i CO Y LE C �-� �-��� ;'�,,1' �.,�
_�a,�
� �,' '',,.,.
BARNARD DIJNI{ELBERG '� CoMpANY, Inc. I :::. i :; ,
,�
� Hy:
� Tit e: Presi ent
� -
( ATTES � '
_ $y: �1�� � `��'i. .
� Title: Vi e President �
, � ;4f , ,
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