HomeMy WebLinkAbout911333.tiff RESOLUTION
RE: APPROVE AGREEMENT FOR SERVICES WITH JERRY G. POPE AND AUTHORIZE CHAIRMAN
TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested
with the authority of administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Agreement for Services
between the Weld County Assessor and Jerry G. Pope, commencing October 26, 1991,
and continuing through the time of trial, with the further terms and conditions
being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said
agreement, a copy of which is attached hereto and incorporated herein by
reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Agreement for Services be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be, and hereby is,
authorized to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded,
adopted by the following vote on the 4th day of November, A.D. , 1991, nunc pro
tunc October 26, 19PILL
991.
� BOARD OF COUNTY COMMISSIONERS
ATTEST: WELD COUNTY, COLORADO
Weld County Clerk to the Board EXCUSED DATE OF SIGNING
//7 f Gordon E. Lacy, Chairman
By: �/,��1? _l741, �i�:
Deputy Clerk to the Board-
--`1 eo/rage K nedy, Pro-Tem
APPROVED AS T FORM: ( "07 'e ri e eze
Constance L. Harbe t
----) seet"3/A `
ounty Attorney C. W. Kirby
i t
d� i '
W. H. Webster
911333
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AGREEMENT FOR SERVICES
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S AGREEMENT is m19 q'nd entered t
Urbbe between the
COUNTY OF
WELD, STATE OF COLORADO, by and through the Board of County
Commissioners of Weld County, hereinafter referred to as "County, "
and the WELD COUNTY ASSESSOR, hereinafter referred to as "Assessor"
and Jerry G. Pope, Construction Consultant, hereinafter referred to
as "Consultant. "
WHEREAS, the Board of County Commissioners of the County of
Weld, State of Colorado, pursuant to Colorado statute and the Weld
County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, and
WHEREAS, the Board, in cooperation with the Assessor, seeks to
obtain the personal services of Consultant in order to defend the
case of Eastman Kodak Company v. Weld County Board of Equalization;
Gordon E. Lacy, George Kennedy, Constance L. Harbert, C. W. Kirby,
W. H. Webster; and Warren Lasell, Weld County Assessor, pending in
Weld District Court, State of Colorado, Case No. 91-CV-676, and
WHEREAS, Consultant, due to his education, expertise and work
experience possesses the qualifications to conduct a construction
cost evaluation on the property that is the subject of the above-
referenced litigation.
NOW, THEREFORE, for and in consideration of the foregoing, and
other good and valuable consideration, the receipt of which is
hereby acknowledged, Consultant agrees to provide to County the
following services on the terms and conditions set forth below:
I . SERVICES TO BE PROVIDED BY CONSULTANT
Consultant shall prepare a construction cost evaluation of the
real property that is the subject of Case No. 91-CV-676, Weld
District Court, State of Colorado--Eastman Kodak Company v.
Weld County Board of Equalization, et.al . The construction
cost evaluation shall be relevant to the 1991 assessment year
and shall be prepared pursuant to the laws of the State of
Colorado. Consultant shall prepare and deliver to County a
written report of such construction cost evaluation no later
than forty-five (45) days after receipt by Consultant of
responses to any discovery requests for the information
Page 1 of 9 Pages
911333
required by Consultant to prepare the construction cost
evaluation.
Consultant shall work closely with the Office of the Weld
County Attorney representing the Defendants in the above-
referenced litigation. Consultant shall also work closely
with any appraisers or other experts hired by the County in
its defense of the above-referenced litigation.
Consultant shall make a physical inspection of the property
that is the subject of the above-referenced litigation in
order to be able to testify regarding the validity of the
construction cost evaluation he prepares pursuant to this
Agreement and to testify regarding the validity of any
construction cost evaluations prepared for the Eastman Kodak
Company concerning this litigation.
Consultant shall also make himself available to the County in
the development of appropriate appraisal theories in the
defense of the above-referenced litigation. Consultant shall
assist the Office of the County Attorney with the preparation
of and responses to discovery requests . Consultant shall be
available as a witness in this litigation and, at the
designated time, Consultant shall be available for oral
depositions, pre-trial conferences, trial appearances, etc.
Payment for these trial preparation tasks shall be separate
and apart from the Agreement Evaluation Price specified in
Section IV below regarding the Cost Estimate Evaluation. Such
payments shall be billed to the County at the rate of $80 . 00
per hour for such services plus reimbursement of mileage at
the rate of $ .25 per mile for ground travel beyond a seventy
( 70) mile radius of Greeley, Colorado. Such payments shall be
billed to the County according to the procedures set forth
below in Section IV. The County shall reimburse Consultant in
full for the above-referenced services and costs associated
with trial preparation within thirty (30) days after receipt
of the monthly invoice.
Consultant specifically acknowledges that the same laws and
regulations governing the use of the Weld County Assessor' s
records and any additional information needed by Consultant to
prepare the Cost Estimate Evaluation apply to any and all uses
of these records and information by Consultant. Consultant is
specifically prohibited from making any use of such
information that is not authorized by law.
Page 2 of 9 Pages
0-1_171";
II . SERVICES TO BE PROVIDED BY COUNTY
The County shall furnish Consultant with the necessary data
and information in County's possession or under County' s
control as requested by Consultant for preparation of the Cost
Estimate Evaluation. Such records or portions thereof of
which Consultant desires copies shall be copied by County and
delivered to Consultant at County' s expense.
Upon designation by Consultant of any data or information
required by him for the preparation of the cost estimate
evaluation, which information is not in the immediate
possession or control of County, the Office of the County
Attorney shall attempt to acquire such information through
discovery processes from the Eastman Kodak Company.
III . TIME FOR PERFORMANCE
2 co c�
The services of Consultant shall commence as of October 'D,
1991, and shall be undertaken and performed in such sequence
so as to assure the expeditious completion of all of the
services required hereunder and of delivery to the County of
a written report of the cost estimate evaluation no later than
forty-five (45) days after receipt by Consultant of responses
to any Discovery requests for the information required by
Consultant to prepare the construction cost evaluation. In
the alternative, Consultant shall deliver a written report of
such construction cost evaluation in accordance with the
orders of the Weld District Court. Preparation of defense
strategy and theory, as well as deposition and trial
testimony, shall be undertaken and performed through the time
of trial . Currently, there is no trial date pending in the
above-referenced litigation.
IV. COSTS AND REIMBURSEMENT
The County shall reimburse Consultant in an amount not to
exceed $10,000 . 00 for all costs associated with the
preparation of the Cost Estimate Evaluation of the property
that is the subject of the above-referenced litigation. The
maximum amount of $10, 000. 00 shall be referred to as the
Agreement Evaluation Price. The Agreement Evaluation Price
does not include the services of Consultant for the
preparation of and responses to Discovery, for oral
depositions, pre-trial conferences, trial appearances, etc.
Reimbursement for such services shall be paid according to the
terms set forth in Section I, above.
Page 3 of 9 Pages
01 -1 '7 r�.
Consultant shall submit monthly invoices, chargeable against
the Agreement Evaluation Price to County detailing the
services performed, the hours spent in performing such
services detailed into tenths of an hour, the hourly rate for
such services, and a list of out-of-pocket expenses (supported
by receipts where applicable) for which reimbursement is
sought. The monthly invoices shall be sent to Donald Warden,
Director of Finance, Weld County, 915 Tenth Street, Greeley,
Colorado, 80631, or to such other person as the County may
hereafter designate in writing.
Subject to the maximum Agreement Evaluation Price, the County
shall reimburse Consultant for 1008 of all allowable out-of-
pocket expenses, documented where applicable, and listed on
the monthly invoice, within thirty ( 30) days of receipt of the
monthly invoice. Subject to the maximum Agreement Evaluation
Price, the County shall reimburse Consultant for 908 of all
hourly services performed and detailed on the monthly invoice
within thirty ( 30) days of receipt of the monthly invoice.
The 108 balance for hourly services performed by Consultant in
preparation of the written report of the Cost Estimate
Evaluation shall be paid by County within thirty (30) days
after the written report of the Cost Estimate Evaluation is
delivered to and accepted by County.
V. MAINTENANCE OF RECORDS
Consultant agrees that he will prepare and maintain all
records, work papers, sketches, photographs, slides, films,
analyses and other records used in preparing the reports
provided for in this Agreement in good order and condition
until the later of the following occurs :
a. The expiration of five (5) years from the date the
written appraisal is delivered pursuant to Section III . ,
b. Termination, whether voluntary or otherwise, of the
above-referenced litigation or any subsequent appeal in
connection therewith.
After the expiration of such period, should Consultant decide
he wishes to dispose in any fashion of such records, work
papers, etc. , he will notify the County of his wishes . If the
County wishes to retain such records,it will make appropriate
arrangements for picking up such records from Consultant.
Page 4 of 9 Pages
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VI . DISCLOSURE
Upon delivery thereof as provided in Section III . , above, the
Cost Estimate Evaluation prepared by Consultant shall be the
property of the County. Consultant agrees that said
evaluation, as well as the determinations and opinions
expressed therein, are confidential information intended for
the sole use of the County and that he will not disclose any
such information, determination or opinions, or in any other
way make such evaluation public, without the express written
approval of the County or the order of a court of appropriate
jurisdiction.
VII . STANDARDS OF PERFORMANCE
Consultant agrees to exercise independent judgment in his
performance under this Agreement. Facts, circumstances and
data relied upon by Consultant in forming an opinion or
drawing inferences shall be of a type normally relied upon by
others in Consultant 's field of expertise.
Anything to the contrary notwithstanding, Consultant shall
form any and all conclusions in an objective, professional
manner. Consultant shall reach his own conclusions as to the
best approach to cost in light of existing laws, and
jurisprudence.
VIII . WARRANTIES AND REPRESENTATIONS BY CONSULTANT
Consultant warrants and represents to the County that he does
not have any present or contemplated future interest in the
real or personal property that is the subject of the above-
referenced litigation, that he does not have any substantial
interest as shareholder or otherwise in Eastman Kodak and that
he does not have any personal interest or bias with respect to
the subject matter of this Agreement or the parties involved
in the litigation in connection with which the services set
forth herein are being performed.
All statements of fact in the Cost Estimate Evaluation which
are used as the basis of Consultant' s analyses, opinions and
conclusions will be true and correct to the best of
Consultant' s knowledge and belief . Consultant shall have no
responsibility for legal matters, questions of survey,
opinions of title. Each finding, prediction, assumption or
conclusion contained in the reports will be Consultant ' s
personal opinion and will not be an assurance that an event
will or will not occur.
Page 5 of 9 Pages
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IX. INDEPENDENT CONTRACTOR-INSURANCE
The Parties acknowledge that Consultant is an independent
contractor for services to County under the terms of this
Agreement; this Agreement does not create an employment
relationship between the Parties . Each Party shall provide
the necessary worker's compensation insurance for its own
employees at its own cost and expense.
To the extent authorized by law, Consultant shall indemnify,
save, and hold harmless County against any and all claims,
damages, liability, and Court awards, including costs,
expenses, and attorney' s fees incurred as a result of this
Agreement. This indemnification specifically excludes the
administration and legal processes that occur in the ordinary
course of the property assessment and tax collection
proceedings under Colorado law.
X. ASSIGNMENT AND DELEGATION
The County and Consultant acknowledge that this Agreement is
a personal services Agreement. In entering into this
Agreement, County is relying upon the professional reputation,
experience and talent of Jerry G. Pope. Accordingly, the
Consultant agrees that all of the obligations required
pursuant to this Agreement shall be performed by Jerry G.
Pope. Jerry G. Pope will personally sign any written report
produced pursuant to this Agreement.
Neither this Agreement nor any of the obligations hereunder
may be assigned to any third party by Consultant without the
prior written consent of County. Failure by Consultant to
provide the direct services and supervision of Jerry G. Pope
are grounds for immediate termination of this Agreement.
XI . MODIFICATION AND WAIVER
This Agreement constitutes the entire understanding and
agreement between the Parties pertaining to the subject matter
contained in it. This Agreement supersedes all prior and
contemporaneous agreements , representations , and
understandings of the Parties . No supplement, modification or
amendment of this Agreement shall be binding unless executed
in writing by both of the Parties . No waiver of any of the
provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.
Page 6 of 9 Pages
`: 9
No waiver shall be binding unless executed in writing by the
Party making the waiver.
XII . GOVERNING LAW
This Agreement shall be construed in accordance with, and
shall be governed by the laws of the State of Colorado.
XIII . PARTIAL INVALIDITY
If any provision of this Agreement is declared by any Court of
competent jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining portions of this
Agreement. On the contrary, such remaining portions shall be
fully severable, and this Agreement shall be construed and
enforced as if such invalid provisions were deleted.
XIV. NOTICE
Any Notice provided for in this Agreement shall be in writing
and served by personal delivery or by certified mail, return
receipt requested, postage prepaid, at the following
addresses :
Board of County Commissioners of the County of Weld
915 Tenth Street
Greeley, Colorado 80631
Jerry G. Pope
2325 54th Avenue
Greeley, Colorado 80634
Any Notice so mailed and Notice served by personal delivery
shall be deemed delivered and effective upon receipt or upon
attempted delivery.
XV. TERMINATION
This Agreement may be terminated by the County at any time and
for any reason upon giving Consultant written Notice of such
termination, which Notice shall be given in the manner set
forth in Section XIV, above. Upon termination of this
Agreement prior to the completion of the delivery to County of
the Cost Estimate Evaluation as provided in Section I, above,
Consultant shall be entitled to reasonable compensation for
the services provided up to the point of termination. The
Consultant shall have a similar right to terminate this
Agreement but only if such termination is for cause.
Page 7 of 9 Pages
ni
XVI . NO BENEFIT TO THIRD PARTIES
Nothing in this Agreement shall be construed to create a cause
of action and/or civil liability remedy in any person not a
party to this Agreement. This Agreement exists for the sole
benefit of the Parties to the Agreement. The Agreement shall
not be construed to create a duty by either Party to any third
Party where no such duty otherwise existed.
IN WITNESS WHEREOF, the Parties above named have executed this
Agreement on the 14-411 day of ,_n_OLLiYYittA> , A.D. , 19 q/ .
n _�j A fri/Leinn BOARD OF COUNTY COMMISSIONERS
ATTEST: /0 WELD COUNTY, COLORADO
Weld Count Clerk to the Board
Y Go . Lea Chairman
By: /LcL / /I�
Deputy Clerk to the BoArciK eorge Ke edy, Pro-Tem
APPROVED A O FORM: Constance L. Har ert
07
&r-4. //X 47
County Attorney C. W. Kirby
a i� Lef
W. H. Webs er
Page 8 of 9 Pages
. r „�,
JERRY G. POPE
CONSTRUCTION CONSULTANT
Je G. P
SUBSCRIBED AND SWORN TO before me this\� day of
r\--e\ . 1991, by S
WITNESS my hand and official seal .
i —
Notary Public
My commission expires :
g-i7-
apope.bap
Page 9 of 9 Pages
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