CONSULTANT AGREEMENT

Transcription

1 Douglas County School District Re.1 Castle Rock, Colorado CONSULTANT AGREEMENT This agreement, dated effective as of is made and entered into by and between the Douglas County School District Re.1, Douglas County, Colorado (hereinafter the "District"), and (hereinafter "Consultant"), for the performance of professional services in connection with the following Project: PROJECT ADDRESS WITNESSETH In consideration of the mutual promises and covenants herein set forth, District and Consultant agree as follows: 1. SERVICES Consultant shall perform the Professional Services described in Exhibit A, attached hereto and incorporated herein by this reference (the "Services"). 2. TERM Consultant shall complete the Services by the date set forth in Exhibit C attached hereto and incorporated by reference (the "Delivery Schedule"). 3. STANDARDS All Services shall be performed by Consultant in a diligent, safe, and workmanlike manner and Consultant shall use its best skill and judgment pursuant to the highest standards of the profession for such Services in furthering the District's best interests. In the event of a breach by Consultant of the terms of this Agreement, the District may terminate this Agreement, and may pursue any remedies available in law or in equity. 4. CONTRACT PRICE AND REIMBURSABLES Consultant shall perform the Services for the contract price and pursuant to the fee schedule set forth in Exhibit B attached hereto and incorporated by reference (the "Fee Schedule"). Items not considered as Reimbursable Expenses: Mileage to and from meetings, phone calls, meals and photographs for Consultants use are not considered reimbursable expenses. 5. INDEPENDENT CONTRACTOR All Services performed by Consultant shall be as an independent contractor and not as an employee of the District. Neither party shall be construed, in any way, as a partner or joint venturer with the other party. Neither the Consultant nor any agent or employee of the Consultant shall be an agent of C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 1

2 the District nor shall any of them have any authority, express or implied, to bind the District to any agreement or incur any liability attributable to the District. Consultant acknowledges that it is not entitled to workers compensation benefits and that Consultant is obligated to pay federal and state income tax on any moneys earned from the District pursuant to this Consultant Agreement. 6. MATERIALS All necessary labor, bonds, permits, licenses, fuel, materials, supplies, machinery, equipment, tools, transportation, and all other items necessary to complete the Services required to be furnished by Consultant (the "Materials") shall be part of and not in addition to the Contract Price. Consultant shall be responsible and liable for any damage or destruction to any Materials resulting from any cause other than the deliberate or negligent acts of the District for which it could be held liable under the Colorado Governmental Immunity Act. 7. GOVERNMENT REGULATIONS Consultant shall comply with all laws, statutes, ordinances, standards, rules, and regulations of all federal, state, municipal, and special district governmental authorities which are applicable to any of the Services or Materials covered under this Agreement. 8. LIENS Consultant shall pay, satisfy, and discharge all taxes, liens, claims, charges, or other impositions of any nature or kind imposed on Consultant or the Project arising out of or in connection with the Services or Materials performed or provided hereunder and shall hold harmless and indemnify the District therefrom. 9. LICENSING REQUIREMENTS As a condition of this Agreement, Consultant shall maintain in effect at all times during the term of the Agreement, any necessary license and/or registration required by applicable law. Consultant shall ensure that each of its employees, subcontractors, or similar personnel which is subject to licensing and/or registration maintains in effect at all times while performing work on the Project, a valid and appropriate license and/or registration. 10. CONSULTANT'S REPRESENTATIONS 10.1 The Consultant shall perform all of the Services set forth herein The Consultant represents that it understands the nature, location, and scope of the Services, the character of the equipment and facilities needed preliminary to and during the performance of the Services, and the general and local conditions and all other matters which can in any way affect the Services and is not relying on any representations or promises by the District except as set forth in this Agreement The Consultant shall cooperate with and shall not in any way interfere with the other consultants, if any, on the site or any work or employees of the District. 11. CONSULTANT'S WARRANTIES 11.1 The Consultant warrants that the Services shall be conducted in a good and workmanlike manner and shall be suitable and fit for the purposes for which they are intended. C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 2

3 11.2 The Consultant warrants and represents that it has full authority under applicable law to execute and deliver this Agreement and to perform all of the obligations under this Agreement The Consultant represents that it shall perform the Services in a safe and diligent manner The Consultant warrants that any Materials utilized shall be adequate and appropriate for the use contemplated by the required Services. 12. HAZARDOUS MATERIALS 12.1 Unless otherwise provided in this Agreement, the Consultant shall have no responsibility for the discovery, presence, handling, removal, or disposal of hazardous materials in any form at the Project site, including, but not limited to, asbestos, asbestos products, polychlorinated biphenyl, or other toxic materials. The Consultant shall, however, prior to commencement with any portion of the work, provide notice to the District of the presence, location, and condition of any known or suspected asbestoscontaining materials that are discovered at the Project site. Such notice shall be in writing and shall be submitted no more than twenty-four hours after such materials or suspected materials are discovered. To the extent known, the notice shall include the quantity, location, and condition of the material In the event of such discovery, the Consultant shall not proceed with the work until it has received written authorization from the District. If the Consultant proceeds with the work without this authorization, it does so at its own risk The Consultant acknowledges that the Consultant, its employees, and agents have the responsibility of being fully informed of the District's Management Plan as it relates to the buildings located at the Project site and shall consult with the District about how such Plan addresses suspected or active asbestos-containing material areas within such buildings. 13. NOTICE Any notice required under this Agreement shall be in writing and shall be effective upon personal delivery or three days after mailing when deposited in the United States first-class mail, postage prepaid, or upon confirmed transmission by telegram, cable, telex, or a facsimile, with charges prepaid to the other party at the following addresses: District: Consultant: Executive Director of Facilities Management Douglas County School District Re Wilcox Street Castle Rock, Colorado name address 14. INFRINGEMENT CLAIMS The Consultant shall defend all suits or claims for infringement of any alleged patent rights, copyright, or trade secrets arising under this Agreement and shall indemnify the District from loss on account thereof and shall pay any judgments or fees resulting therefrom, including, but not limited to, royalties, license fees, and attorney's fees. 15. INSURANCE OF CONSULTANT C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 3

4 15.1 Consultant shall maintain in effect at all times during the term of this Agreement the following policies of insurance: 15.2 Workers' Compensation Insurance covering injury to, or occupational disease or death of, all employees engaged in the work (including active partners or individual owners) in accordance with the statutory requirements of the state or states in which the Services are to be performed, including employer's liability insurance Comprehensive bodily injury, property damage, personal injury, and broad form property damage liability insurance, including owned, nonowned, leased, or hired automobiles, including contractual liability, products liability, completed operations liability, and owners and contractors protective liability, if any (to be maintained for a minimum period of three years after final completion of the work). Such coverage shall provide a limit of One Million Dollars ($1,000,000) combined single limit bodily injury and property damage for each occurrence subject to an aggregate limit of One Million Dollars ($1,000,000). Personal injury coverage shall provide a limit of One Million Dollars ($1,000,000) combined single limit for each occurrence subject to an aggregate limit of One Million Dollars ($1,000,000). The District shall be named as an additional insured under such policies. A policy which provides One Million Dollars ($1,000,000) of coverage via a primary policy plus an umbrella or following form excess policy will be satisfactory Professional Liability insurance with a retroactive date equivalent to commencement of work to be maintained for three years after final completion of the work. Such coverage shall provide a limit of one million dollars ($1,000,000) on a claims made basis. Such policy shall be purchased and premiums for the terms specified herein paid not later than the date of the execution of this contract. A policy which provides such limits of coverage via a primary policy plus an umbrella or following form excess policy will be satisfactory Insurance on Consultant's tools and equipment owned, rented, or used by Consultant in performing the work for such period of time as such tools and equipment are used in performing the Services, and any other insurance which Consultant deems necessary for protection of the work or for the protection of District and Consultant Unless otherwise modified by the District in writing in advance, the insurance of the Consultant described in this Section 15 shall be written by sureties legally authorized to write such insurance in the State of Colorado, provided such surety companies are rated in Best's Insurance Guide (latest edition), not lower than A-, and have a Best's Financial Rating of at least VII. The terms of coverage shall be as evidenced by certificates to be furnished to the District. Such certificates shall provide that thirty days' written notice will be given to Douglas County School District Re.1, Douglas County, Colorado, should the policies be nonrenewed, have a reduction in coverage or policy limits as described above, exhaustion of policy limits, or cancellation for any reason The certificate of insurance will indicate any limitation of coverage in the Consultant's insurance policy such as claims made, defense within limits and aggregates, etc. Acceptance of a certificate with less than the required amounts and coverage shall not be deemed a waiver of those requirements Consultant shall require all of its subconsultants to maintain Workers' Compensation Insurance, Comprehensive General Liability Insurance, and Comprehensive Automobile Liability Insurance with the same limits and conditions as insurance maintained by Consultant herein. C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 4

5 15.9 Notwithstanding the preceding, the District may waive or modify the requirements of this Section 15. Such waiver or modification shall not be effective unless made in writing executed by an appropriate officer or employee of the District. 16. INDEMNITY Consultant shall indemnify, defend, and hold the District harmless from any and all claims and causes of action, including attorneys' fees, for any damage to or destruction of property or injury to any person as a result of acts or omissions of Consultant or any of its agents in the performance of the Services required herein. 17. USE OF WORK PRODUCT Consultant's work product shall be delivered to the District in the time frame contemplated by this Agreement and may be used by the District for any purpose connected with the Project. 18. TERMINATION 18.1 This agreement may be terminated by either party upon five days' written notice should the other party fail to substantially perform in accordance with its terms through no fault of the initiating party. In addition, the District may in its sole discretion unilaterally terminate this Agreement with or without cause upon five days' written notice to the Consultant. In the event of termination of this Agreement, the Consultant shall be paid the specified compensation for Services performed to the date of termination, including reimbursable expenses then due. In the event of termination, the Consultant shall deliver to the District all drawings, plans, reports, data, and similar Materials relating to the Project and for which it has received compensation If the Project is suspended or abandoned in whole or in part for more than three months, the Consultant shall be compensated for all Services performed prior to receipt of written notice from the District of such suspension or abandonment, together with all reimbursable expenses then due. At its sole discretion, the District may terminate this Agreement by giving written notice to the Consultant if the Project is abandoned or suspended for more than three months. 19. DISTRICT'S ACTIONS Any approvals or acceptance by the District in relation to this Agreement shall be an approval or acceptance of concepts based on the Consultant's representations and such approval or acceptance shall not be deemed to supersede the Consultant's judgment as to the technical sufficiency or propriety of the matter. 20. EXHIBITS The agreement includes Exhibits A, B, C, and D, attached hereto and made a part hereof. 21. NONASSIGNMENT Consultant shall not assign or subcontract any of its rights or obligations hereunder without the express written consent of the District. 22. CHANGE ORDERS All change orders are subject to District policy and regulations. No change will be effective unless and until approved in writing by the District. C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 5

6 23. LIMITATION OF ACTIONS 23.1 Unless a longer period is provided by law, any legal action brought by the District against the Consultant to recover damages shall be brought within two years after the claim for relief arises and is discovered by the District; provided, however, if written notice of a potential claim is given to the Consultant within such two-year period, then an action may be brought within four years after the claim for relief arises and is discovered by the District "Discovered" as used herein means detection and knowledge by the District of the defect in the improvement or Services which ultimately causes the injury or damage (when such defect is of a substantial or significant nature) and the cause of such defect. 24. INSPECTIONS Where the Project involves the work of other contractors, subcontractors, or suppliers, the Consultant upon completion of the Project shall deliver a report of final inspection to the District, which report shall include: a statement that the Project has been fully and finally completed in accordance with the plans and specifications and any contract documents; a list of the warranties and guarantees required by the contractor(s)' contract to be delivered in writing to the District; and a statement that the contractor(s) are entitled in the Consultant's opinion to final payment upon their contracts. Such report and/or payment shall not in any manner affect, waive, or release any of the District's claims against the contractor(s), regardless of whether previously discovered or known. In addition, the Consultant, accompanied by a representative of the District, shall make a minimum of one warranty inspection of the Project at least one month prior to the expiration of any applicable warranty period and provide a written report of the findings and/or recommendations to the District. 25. ENTIRE AGREEMENT This Agreement contains all of the terms, conditions, and provisions hereof and the entire understanding and all representations of understandings and discussions of the parties relating thereto, and all such prior representations, understandings, and discussions are merged herein and superseded and canceled by this Agreement. This Agreement may only be modified or amended by further agreement executed by the parties hereto. 26. ILLEGAL ALIENS 26.1 Pursuant to Colo. Rev. Stat et. seq., the District cannot enter into or renew a public contract for services with a contractor who knowingly employs or contracts with an illegal alien to perform work under the contract or who knowingly contracts with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract In accordance with the mandatory provisions of Colo. Rev. Stat et. seq., Consultant certifies that it shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subconsultant that fails to certify to Consultant that the subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this public contract Consultant has confirmed or attempted to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the United States Citizenship and Immigration Services Basic Pilot Employment Verification Program (hereinafter referred to as the Basic Pilot Program ). If Consultant has not been accepted into the Basic Pilot Program C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 6

7 prior to entering into this Agreement, Consultant shall apply to participate in the Basic Pilot Program every three months until Consultant is accepted or the Agreement for Services has been completed, whichever is earlier. Consultant shall not use the Basic Pilot Program to undertake pre-employment screening of job applicants while the Agreement is being performed If Consultant obtains actual knowledge that a subconsultant performing work under this Agreement knowingly employs or contracts with an illegal alien, Consultant shall: a. Notify the subconsultant and the District within three days that Consultant has actual knowledge that the subconsultant is employing or contracting with an illegal alien; and b. Terminate the subconsultant if within three days of receiving actual notice the subconsultant does not stop employing or contracting with the illegal alien, except that Consultant shall not terminate the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with an illegal alien Consultant shall comply with any reasonable request by the Department of Labor and Employment (hereinafter referred to as the Department ) made in the course of an investigation that the Department is undertaking pursuant to C.R.S (5) If Consultant violates the provisions of this paragraph, the District may terminate the Agreement for breach and Consultant shall be liable for actual and consequential damages If Consultant is an individual rather than an entity, the following provision shall apply: Consultant hereby swears or affirms under penalty of perjury that Consultant (a) is a citizen of the United States or is otherwise lawfully present in the united States pursuant to federal law, (b) shall comply with the provisions of CRS prior to the effective date of this Agreement, and (c) shall produce one of the forms of identification required by CRS prior to the effective date of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Consultant Attest Title Title Douglas County School District Re.1 Director of Construction Attest Construction Specialist C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 7

8 Approved as to form: Attorney for District C:\Documents and Settings\labachtel\Desktop\rfq\Consultant Agreement.doc Page 8