DESIGN SERVICES AGREEMENT THIS DESIGN SERVICES AGREEMENT (The Agreement ) is entered into this day of [date], by and between the Board of County Commissioners of Summit County, having its principal place of business at 208 Lincoln Avenue, P.O. Box 68, Breckenridge, Colorado 80424 ("Owner"), and Architect/Engineer s Name and Address] ( A/E ). WHEREAS, Owner desires to contract with A/E to perform architectural design and related services in accordance with terms of this Agreement; and WHEREAS, A/E desires to perform the subject services on an independent contractor basis as set forth in this Agreement. NOW THEREFORE, in consideration of the above recitals, which are hereby incorporated into the below Agreement, and in consideration of the mutual promises made herein, the receipt and sufficiency of which are hereby acknowledged, the Owner and A/E further agree as follows: I. PROJECT. The project is to convert the Summit County South Branch Library, a 3500 sf building located at 504 Airport Road in Breckenridge CO, into a 4000 to 4500 sf building comprising of two professional office suites, a separate storage area and attendant facilities (the Project ). The office suites will be designed and finished to meet the respective needs of the tenants, the Summit County District Attorney s Office ( DA ) and the Summit County Probation Offices ( Probation ). The storage space will be for the use of Owner. II. SCOPE OF WORK. The scope of work (the Services ) is the performance of A/E design and construction related services for the Project, which include: A. Design Stage Work. 1. Develop a conceptual plan incorporating the latest thinking in the field concerning office requirements along with recommendations relative to the installation and upgrades of different building systems and finishes. 2. Draft specific conceptual drawings and detailed engineering and construction drawings that will serve as the basis for both bidding and construction by a general contractor. 3. Coordinate and attend a series of design meetings with the Design Team to develop and refine specific programming requirements for each tenant as well as common area, and interior and exterior design options, with subsequent design meetings as the project progresses through the design phases. 4. Assist Owner with selection of construction firms that should be given an opportunity to bid on the project based on their reputation for quality, their local experience, their reputation for on-time and on-budget performance, and their financial credibility. 5. Prepare bid documents to be sent to construction firms for the project. 6. Review of the construction bids to assess the relative merits of each and assist the Owner in awarding the contract.
7. Assist Owner in drafting an appropriate construction contract to be attached to the construction services RFP (Owner will have legal representation). B. Construction Stage Work. 1. Assist with completing the government approval process (i.e., permits). It will be the responsibility of the A/E firm to meet with pertinent planning & zoning personnel and building & Fire Authority officials to collect and submit all mandatory documentation to obtain all required approvals. 2. Perform sign-off on the construction phase of the Project, assuring that the constructed Project embodies what was originally conceptualized and captured in the A/E designs and working drawings. 3. Attend weekly Owner, Architect, Contractor meetings for the duration of the construction project through occupancy, site observations of the contractor and subcontractors throughout the construction phase, and sign off on construction drawings to assure that scheduled payments are made, with appropriate holdbacks, when predetermined work has been completed. 4. Produce final construction drawings that must be coordinated and completed so the contractor constructing the project is able to obtain all necessary building permits. 5. Final sign-off on the project, assuring that the final project represents what was originally conceptualized and captured in the working drawings. C. The Services shall be performed as more fully set forth in Attachment A hereto consisting of bid package DAP2014 Design dated March 7, 2014, Attachment B hereto consisting of Architect response to DAP2014 Design dated all of which are incorporated herein by this reference (hereinafter called "Services"), Attachment C Scope of Work, and Attachment D Architect s Work Outline. In the event of any conflicts between the Agreement and any of the terms of the attached exhibits, the terms of this Agreement shall prevail. D. A/E represents and acknowledges that the Services performed under this Agreement will be done using A/E's own equipment at A/E's own home or place of business, and at hours and times as determined by A/E. A/E is engaged in providing these types of services for persons or entities other than the Owner, and the A/E is not required to provide services exclusively to the Owner during the term of this Agreement. III. COMPENSATION. For satisfactory performance of the Services hereunder, Owner shall pay A/E a fixed sum not to exceed [amount] for its services in accordance with the terms of this Agreement. Payment will not be made on a salary or hourly rate. Owner shall have no obligation to make any payments until such time as Owner accepts A/E s performance as satisfactory. All payments under this contract shall be to the trade or business name of the A/E. No payments will be personally made to an individual under this contract. A. Invoices. A/E will submit invoices on a monthly basis, which will describe the Services performed and expenses incurred pursuant to this Agreement. Invoices will be reviewed by Scott Vargo, Assistant County Manager, or his designee, who will submit them to the Summit County Finance Department for payment upon his/her approval. Invoices shall 2
provide detail of A/E s performance of Services sufficient to the Owner s requirements. Upon request, A/E shall provide documentation of its expenses. Payment of such invoices will be due within twenty-five (25) days of the receipt thereof. B. Fund Availability/Annual Appropriation. Payment pursuant to this Agreement, whether in whole or in part, is subject to and contingent upon the continuing availability of Owner funds for purposes hereof. In the event that said funds, or any part thereof, become unavailable as determined by the Owner, the Owner may immediately terminate this Agreement or amend it accordingly. C. Multi-Year Contracts. The obligations of the Owner hereunder shall not constitute a general obligation indebtedness or multiple year direct or indirect debt or other financial obligation whatsoever within the meaning of the Constitution or laws of the State of Colorado. IV. TERM. The term of this Agreement shall be from the date first written above until December 31, 2015. The Agreement may be terminated earlier by final completion of the Services by the A/E and acceptance of the services by the Owner or through the termination provisions provided herein. V. TERMINATION. A/E may terminate this Agreement at any time by giving the Owner advance written notice of not less than 60 days. Owner may terminate this Agreement at any time in the event that A/E violates the terms of this Agreement or fails to produce a result that meets the specifications of this Agreement. In the event of termination, payments will be made to A/E for all work performed up to the date of termination. VI. RELATIONSHIP. The parties understand and agree that A/E is an independent contractor and that A/E is not an employee, agent or servant of the Owner, nor is A/E entitled to Owner employment benefits. A/E UNDERSTANDS AND AGREES THAT A/E IS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS AND THAT A/E IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THIS AGREEMENT. As an independent contractor, A/E agrees that: A. A/E does not have the authority to act for the Owner, or to bind the Owner in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of the Owner; and B. A/E has and hereby retains control of and supervision over the performance of A/E s obligations hereunder and control over any persons employed or contracted by A/E for performing the Services hereunder; and C. Owner will not provide training or instruction to A/E or any of its employees regarding the performance of Services hereunder; and D. Neither A/E, nor its employees or contractors, will receive benefits of any kind from the Owner. A/E represents that it is engaged in providing similar services to the general public and not required to work exclusively for the Owner; and 3
E. All Services are to be performed solely at the risk of the A/E and A/E shall take all precautions necessary for the proper performance thereof; and F. A/E will not combine its business operations in any way with the Owner s business operations and each party shall maintain their operations as separate and distinct. VII. A/E RESPONSIBILITIES. In addition to all other obligations contained or incorporated herein, A/E agrees: A. To furnish all tools, labor and supplies in such quantities and of the proper quality to professionally and timely perform the Services; and B. To respond and proceed with diligence and promptness in the performance of Services. C. To comply, at its own expense, with the provisions of all state, local and federal laws, regulations, ordinances, requirements and codes which are applicable to the performance of the Services hereunder or to A/E as employer. D. To be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by the A/E under contract. E. The A/E shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications, and other services. F. That neither the Owner s review, approval or acceptance of, nor Owner s payment for, the Services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the A/E s performance of this Agreement, and that the A/E shall be and remain liable to the Owner in accordance with applicable law for all damages to the Owner caused by the A/E's negligent performance of any of the Services furnished under this Agreement. G. That the design of architectural, structural, mechanical, electrical, civil, or other engineering features of the work shall be accomplished or reviewed and approved by architects or engineers registered to practice in the particular professional field involved in the state of Colorado. H. The A/E shall provide Owner with a list of key personnel comprising persons assigned to be Owner s points of contact with A/E in the performance of Services hereunder. If any of the key personnel leave A/E s employment, reassigned by A/E or are otherwise not utilized in the performance of the Services, approval to substitute must be obtained from the Owner, by the A/E. I. At Owner s reasonable request, A/E shall substitute personnel assigned to perform Services hereunder. Any substitute shall have the same or a higher standard of qualifications that the key personnel possessed at the time of Contract award. J. At A/E's sole expense, to procure, post, and keep valid, all necessary professional and related licenses necessary for performance of this Agreement. VIII. CONFIDENTIALITY. A/E recognizes and acknowledges that in the course of providing Services hereunder it may acquire or become knowledgeable about information that could be confidential in nature concerning the Owner s business affairs, customers, vendors, finances, properties, methods of operation, computer programs, and documentation, and other such 4
information, whether written, oral, or otherwise may be confidential in nature. All such information concerning the Owner is herein referred to as "confidential information." IX. NON-DISCLOSURE. A/E agrees that, except as otherwise directed by Owner in writing, it will not at anytime during or after the term of this agreement disclose any confidential information to any person whatsoever. In the event A/E has reason to believe such information is confidential information. A/E will notify the Owner of any third party inquiry for information that may be deemed confidential and shall direct the party requesting information to the Owner. A/E further agrees that, except as otherwise directed by Owner in writing, upon the termination of this agreement it will turn over to the Owner all documents, papers, and other matter in its possession or control that relates to the Owner. A/E further agrees to bind its employees and subcontractors to the terms of this agreement. X. SUBCONTRACTORS. A. Any subcontractors and outside associates or consultants required by the A/E in connection with the Services covered by the Agreement will be limited to individuals or firms that were specifically identified and agreed to by Owner. B. The A/E shall obtain the Owner s written consent before making any substitution for these subcontractors' associates, or consultants. C. A/E shall require its subcontractors to comply, at their own expense, with the provisions of all state, local and federal laws, regulations, ordinances, requirements and codes which are applicable to the performance of the Services hereunder. D. A/E s agreements with any sub-contractors utilized for the performance of Services hereunder shall provide clearly that there is no privity of contract between the Owner and the A/E's subcontractors, outside associates, and other contractors. XI. WORK QUALITY. The A/E warrants to the Owner that all services provided will be of good quality, in conformance with the highest standards of the profession and in conformance with this Agreement. XII. WORK PRODUCT. Any data, reports, drawings, documents (including electronic files) or other things or information provided by the Owner to the A/E during the performance of Services and any reports, drawings or other writings produced or required to be produced by A/E under the terms of or Services under this Agreement shall be and remain the sole property of the Owner at all times. The A/E shall return or provide to the Owner such documents, etc. by the completion date and before full payment of the compensation herein. Owner shall not be deemed the owner of said documents until payment has been received by A/E. Owner acknowledges that use of the documents prepared under this Agreement should be used only for the Project for which they were prepared. A/E may use ideas and drawings prepared during the performance of Services for other projects, as appropriate. Owner further acknowledges that use of documents which are not stamped "final construction documents" will be at Owner's sole risk and without liability to A/E. Furthermore, reuse or modification of any such documents by Owner, without A/E's written permission, shall be at Owner's sole risk. XIII. ARCHITECT'S PROFESSIONAL LEVEL OF CARE. A/E shall be responsible for the completeness and accuracy of the Services, including all supporting data and other 5
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 Owner has accepted or approved the Services shall not relieve A/E of any of its responsibilities. A/E shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to architects, with respect to similar services, in the Summit County, Colorado area at this time. XIV. INDEMNIFICATION. A. A/E shall indemnify and hold harmless the Owner from and against all claims, damages, losses, and expenses caused by or otherwise arising as a result of acts or omissions of the A/E, A/E s sub-contractors, including their respective officers, employees, contractors or agents, in A/E s performance of Services or other A/E obligations hereunder. B. Owner shall, to the extent allowed by applicable Colorado law, indemnify and hold harmless the A/E from all claims, damages, losses and expenses caused by or otherwise arising as a result of the acts or omissions of the Owner, its officers, employees, contractors or agents, in the performance of Owner obligations hereunder. XV. INSURANCE. No later than seven days after execution of this Agreement, A/E shall provide the Owner with certificates of insurance evidencing the types and amounts of insurance specified below: A. Standard Workers Compensation as required by law in the State of Colorado. A/E shall take out and maintain during the period of the Agreement, Colorado Workmen s Compensation Insurance for A/E and all employees of the A/E. If any service is sublet by A/E, the A/E shall require the subcontractor to provide the same coverage for the subcontractor and subcontractor s employees. Workmen s Compensation Insurance shall include occupational disease provision covering any obligations of the A/E in accordance with the provision of the Workmen s Compensation Act of Colorado; and B. Comprehensive General Liability Insurance for operations and contractual liability adequate to cover the liability assumed hereunder with limits of not less than $1,000,000 on account of any one person and $2,000,000 for each occurrence of property damage and personal injury; and C. Automobile Liability insurance in those instances where A/E uses an automobile, regardless of ownership, for the performance of the Services. A/E shall carry insurance, written on the comprehensive automobile form insuring all owned and non-owned automobiles with limits of not less than $150,000 (bodily injury per person), $990,000 (each accident) and $100,000 (property damage); and D. Professional Liability Insurance. The A/E shall furnish to the Owner and at all times maintain professional liability insurance with errors and omissions insurance in the amount of $500,000. E. The insurance shall be written to cover the Owner and shall be written from a surety who is legally authorized to write such insurance in the State of Colorado and must be rated in the A category in the Best s Insurance Guide (latest edition). F. The terms of coverage shall provide a 30 day notice prior to cancellation. G. Insurance coverage shall not be reduced below the limits described above or cancelled without Owner s written approval of such reduction or cancellation. Reduction, cancellation or termination of insurance coverage, or failure to obtain insurance coverage, 6
without the Owner s written approval shall constitute a material breach of the Agreement and shall automatically terminate the Agreement. H. A/E shall require that any of its agents or subcontractors who enter upon the Owner s premises shall maintain like insurance. Certificates of such insurance, of agents and subcontractors, shall be provided to the Owner upon request. XVI. NOTICES. Any notice to be given hereunder by either party to the other, shall be in writing and shall be deemed given when sent by certified mail. Notices to the Owner shall be addressed to: Scott Vargo, Assistant County Manager Summit County Government P.O. Box 68 201 Lincoln Avenue Breckenridge, CO 80424 (970) 453-3402 scottv@co.summit.co.us Notices to the A/E shall be addressed to: If either party changes its address during the term herein, it shall so advise the other party in writing as herein provided and any notice thereafter provided to be given shall thereafter be sent by certified mail to such new address. XVII. THIRD PARTIES. This Agreement does not and shall not be deemed to confer upon any third party any right to claim damages to bring suit, or other proceeding against either the Owner or A/E because of any term contained in this Agreement. XVIII ASSIGNMENT. This Agreement is for personal services predicated upon A/E's special abilities or knowledge, and A/E shall not assign this Agreement in whole or in part without prior written consent of the Owner. XIX. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. XX. MODIFICATION. This Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto. XXI. SEVERABILITY. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the 7
party shall be construed and enforced accordingly, to effectuate the essential intent and purposes of this Agreement. XXII. ENFORCEMENT AND WAIVER. The failure of either party in any one or more instances to insist upon strict performance of any of the terms and provisions of this Agreement, shall not be construed as a waiver of the right to assert any such terms and provisions on any future occasion or of damages caused thereby. XXIII. NONEXCLUSIVE NATURE. This Agreement does not grant A/E an exclusive privilege or right to supply services to the Owner. Owner makes no representations or warranties as to a minimum or maximum procurement of Services hereunder. XXIV. INTERPRETATION. The validity, interpretation and effect of this Agreement shall be determined under Colorado law. All actions arising directly or indirectly as a result or in consequence of this Agreement shall be instituted and litigated only in courts having situs in Summit County, Colorado. Any provision found to be invalid or unenforceable shall have no effect upon the validity of any other section of this contract. XXV. EFFECTIVE DATE. The effective date of this Agreement shall be the date first written above regardless of the date when the Agreement is actually signed by the parties. XXVI. AUTHORIZATION. Each party represents and warrants that it has the power and ability to enter into this Agreement, to grant the rights granted herein and the perform the duties and obligations herein. XXVII.ATTORNEYS FEES. If an action is brought to enforce this Agreement, the prevailing party shall be entitled to costs and reasonable attorney's fees. XXVIII.GOVERNMENTAL IMMUNITY. The Owner does not intend to waive by any provision of this Agreement, the monetary limits or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S. XXIX. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES. A/E shall not knowingly employ or contract with an illegal alien to perform work under the Agreement; or enter into a contract with a subcontractor that fails to certify to A/E that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Agreement. IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to sign this DESIGN SERVICES AGREEMENT as of the date first written above. [Company name in Caps] BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY By: By: 8
Name and Title of Authorized Signor Gary Martinez, County Manager [ATTACH ANY DOCUMENTS LABELED EXHIBIT A, EXHIBIT B, etc.] 9