HomeMy WebLinkAbout911341.tiff RESOLUTION
RE: APPROVE AGREEMENT FOR SERVICES BETWEEN THE WELD COUNTY ASSESSOR AND MAX J.
DERBES, APPRAISERS AND REAL ESTATE CONSULTANTS, INC. 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 Max J. Derbes, Appraisers and Real Estate
Consultants, Inc. , commencing November 6, 1991, and ending upon completion of
District Court Case, 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 between the Weld County
Assessor and Max J. Derbes, Appraisers and Real Estate Consultants, Inc. 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 6th day of November, A.D. , 1991.
BOARD OF COUNTY COMMISSIONERS
ATTEST: i WELD COUNTY, COLORADO
Weld County C er to the Board EXCUSED
Gordon Lacy, Chairman
/7-
Deputy Clerk to the Boa,r-dzL. Geoj a Kenn dy, Pro-`Teemmm
APPROV AS TO FORM: 1 "ev-72‹.. 7&-,7-61 111,41
Constance L. Harbert
/ �JJJe(5 EXCUSED DATE OF SIGNING
(` y vCou Attorney C. W. Kirby
W. ..�Webster L
911341
p-sc v a. z CC„, ' s, /Ca DE,i(aE1S- 4/11 (1-0)
•
AGREEMENT FOR SERVICES
HIS AGREEMENT is made nd entered into this ll/ m day of
, 19 _, by and 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 MAX J. DERBES, APPRAISERS & REAL ESTATE CONSULTANTS, INC. ,
hereinafter referred to as "Appraiser. "
WHEREAS, the Board of County Commissioners of the County of
Weld, 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 Appraiser to perform an appraisal
of the real property at issue in Weld District Court, State of
Colorado, Case No. 91-CV-676 , 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, regarding tax year 1991, and
WHEREAS, Appraiser and its personnel and employees possess the
qualifications to perform such an appraisal due to the education,
expertise and work experience of the Appraiser' s personnel.
NOW, THEREFORE, for and in consideration of the foregoing, and
other good and valuable consideration, the receipt of which is
hereby acknowledged, Appraiser agrees tc provide to County the
following services on the terms and conditions set forth below:
I . SERVICES TO BE PROVIDED BY APPRAISER
The Appraiser shall appraise the real property that is the
subject of Case No. 91-CV-676, Weld District Court, State of
Colorado, Eastman Kodak v. Weld County Board of Equalization
et al . The Appraisal shall cover assessment/tax year 1991 .
The market value sought for the subject property shall be in
accordance with the laws of the State of Colorado. The
Appraiser shall prepare and deliver a written report of such
appraisal no later than ninety days after delivery to
Appraiser of a completed cost estimate on the subject property
together with all other relevant information required by
Page 1 of 11 Pages
ni 47 14
Appraiser that is in the custody of the Assessor or is subject
to the Assessor' s control. In the alternative, Appraiser
shall deliver a written report of such appraisal in accordance
with the Orders of the Weld District Court.
Appraiser shall work closely with the Office of the Weld
County Attorney representing the Defendants in the above-
referenced litigation. Appraiser shall assist the attorneys
in the fair and equitable application of appraisal theory to
the legal issues involved. To this end, Appraiser shall work
closely with any other appraisers hired by the County in
connection with the appraisal of this property. If additional
criteria are deemed appropriate by the attorneys for the
County, Appraiser shall make additional appraisals based upon
such criteria furnished to it by the Office of the County
Attorney. These additional appraisals shall be identified as
being based upon conditions furnished to the Appraiser.
Services and expenses for those additional appraisals shall be
billed and paid separate and apart from the Agreement Price
specified in Section IV for the written appraisal. Such
payments shall be billed to the County according to the
procedures set forth below in Section IV at the hourly service
rates . described below in this Section I plus separate
reimbursement for coach air travel costs, car rental charges,
hotel charges exclusive of meals, and New Orleans airport
parking charges. Payment in full by County for services and
expenses for such additional appraisals shall be made within
thirty ( 30) days after receipt of the monthly invoice.
Appraiser may require the services of West Foster, an
independent Weld County Appraiser, to complete the above-
described appraisal . It is expressly understood that the
compensation for any services provided by West Foster for
completing the appraisal are a part of and not separate from
the appraisal Agreement Price that is fully described below in
Section IV. West Foster' s services will be billed by
Appraiser subject to the same procedures for Appraiser's
billings that are set forth in Section IV. For purposes of
this Agreement only, West Foster shall be considered part of
Appraiser' s "personnel . "
Appraiser shall make a physical inspection of the property
that is the subject of the above-referenced litigation in
order to be able to testify in connection with the appropriate
theories of value and also to testify regarding the validity
Page 2 of 11 Pages
91_1.714
•
of the appraisal techniques used by the appraisers assigned to
this property by the Eastman Kodak Company.
Appraiser shall also make itself and its personnel available
as appraisal consultants to the County in the development of
appropriate appraisal theories. Appraiser and its personnel
shall be available as theory witnesses and as appraisal review
witnesses for the above-referenced litigation. At the
appropriate time, Appraiser shall make its appropriate
personnel available for oral depositions, pre-trial
conferences, trial appearances, etc. , in connection with the
above-referenced litigation. Payment for these tasks shall be
separate and apart from the Agreement Price specified in
Section IV for the written appraisal . Such payments shall be
billed to the County according to the procedures set forth
below in Section IV at the following rates for the services of
the persons indicated plus separate reimbursement for coach
air travel costs, car rental charges, hotel charges exclusive
of meals, and New Orleans Airport parking charges.
Max J. Derbes, Jr. $150 .00 per hour
Michael W. Truax $125 . 00 per hour
Carr T. Dowell, III $125 . 00 per hour
Mark T. Tatum $ 80 . 00 per hour
John M. Robles $100. 00 per hour
William M. Baldwin $ 50 . 00 per hour
David S . Derbes $100 . 00 per hour
West Foster $100 . 00 per hour
The County shall reimburse Appraiser in full for the above-
referenced services and allowable costs associated with trial
preparation within thirty ( 30) days after receipt of the
monthly invoice.
Appraiser and its personnel specifically acknowledge that the
same laws and regulations governing the use of the Weld County
Assessor' s records and any additional information needed by
Appraiser to prepare its appraisal apply to any and all uses
of these records and information by Appraiser. Appraiser and
its personnel are specifically prohibited from making any use
of such information that is not authorized by law.
II . SERVICES TO BE PROVIDED BY COUNTY
The County shall furnish Appraiser with the necessary data and
information required by the Appraiser which the County and/or
Page 3 of 11 Pages
01. 1 "•.
the Assessor has in its possession or under its control . To
that end, the County will make available to Appraiser all of
the non-privileged information related to the property
involved in the above-referenced litigation which is contained
in the files and records of the County Assessor. Such
records, or portions thereof of which Appraiser desires
copies, will be copied by the County and delivered to
Appraiser. The County will assist the Appraiser in obtaining
the cost estimate of the reproduction cost, or replacement
cost as and if appropriate, of the property that is the
subject of the above-referenced litigation. The appraisal
services to be provided by Appraiser pursuant to this
Agreement will require input from certain technical cost
estimators . County agrees to obtain such assistance from Mr.
Jerry Pope, Construction Consultant, Greeley, Colorado, or
from another expert chosen in consultation with Appraiser and
retained on terms acceptable to County.
III . TIME FOR PERFORMANCE
The services of the Appraiser are to commence as of October 3,
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 appraisal report no later than ninety ( 90) days
after delivery to Appraiser of a completed cost estimate on
the subject property together with all relevant information
required by Appraiser which is in the Assessor' s custody or is
subject to his control. In the alternative, Appraiser shall
deliver a written report of such appraisal 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-
reference litigation.
IV. COST AND REIMBURSEMENT
The County shall reimburse Appraiser in an amount not to
exceed $40,000 . 00 for all costs associated with the
preparation of the appraisal of the property that is the
subject of the above-reference litigation. The maximum amount
of $40, 000 . 00 shall be referred to as the "Agreement Price. "
The Agreement Price does not include the services of
Appraiser's personnel for oral depositions, pre-trial
conferences, trial appearances, etc. Reimbursement for such
Page 4 of 11 Pages
services and associated expenses of coach air travel costs,
car rental charges, hotel charges exclusive of meals, and New
Orleans Airport parking charges shall be paid according to the
terms set forth in Section I . , above.
Appraiser shall submit monthly invoices, chargeable against
the Agreement Price, to County detailing the services
performed, the hours spent in performing such services
detailed into tenths of an hour, the individual performing
such services, the hourly rate of such individual, 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 10th Street, Greeley, Colorado 80631, or to
such other person as the County may hereafter designate in
writing.
Subject to the maximum Agreement Price, the County shall
reimburse Appraiser for one hundred percent ( 100%) 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 Price, the County shall reimburse Appraiser for
ninety percent (90%) of all hourly services performed and
detailed on the monthly invoice within thirty (30) days of
receipt of the monthly invoice. The ten percent ( 10%) balance
for hourly services performed by Appraiser in preparation of
the written appraisal shall be paid by County within thirty
( 30) days after the written report of the appraisal is
delivered to and accepted by County.
t
r
V. MAINTENANCE OF RECORDS
The Appraiser agrees that it will prepare and maintain all
records, work papers, sketches, photographs, slides, films,
analyses and other records used in preparing the reports f
provided for in this Agreement in good order and condition
until the late of the following occurs : 5
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.
Page 5 of 11 Pages
F
After the expiration of such period, should the Appraiser
decide it wishes to dispose in any fashion of such records,
work papers, etc. , it will notify the County of its wishes .
If the County wishes to retain such records,it will make
appropriate arrangements for picking up such records from the
Appraiser.
VI . DISCLOSURE
Upon delivery thereof as provided in Section III . , above, the
appraisal prepared by the Appraiser shall be the property of
the County. The Appraiser agrees that said appraisal, as well
as the determinations and opinions expressed therein, are
confidential information intended for the sole use of the
County and that it will not disclose any such information,
determination or opinions, or in any other way make such
appraisal public, without the express written approval of the
County or the order of a court of appropriate jurisdiction.
VII . STANDARDS OF PERFORMANCE
The Appraiser agrees to exercise independent judgment and to
complete performance under this Agreement in accordance with
sound appraisal practice and the Code of Professional Ethics
and Standards of Professional conduct of the Appraisal
Institute. Facts, circumstances and data relied upon by the
Appraiser in forming an opinion or drawing inferences shall be
of a type normally relied upon by others in the Appraiser' s
field of expertise.
Anything to the contrary notwithstanding, Appraiser shall form
any and all conclusions in an objective, professional manner.
Appraiser shall reach its own conclusions as to the best
approach to value in light of existing laws, jurisprudence,
appraisal theory and practice.
VIII .WARRANTIES AND REPRESENTATIONS BY APPRAISER
The Appraiser warrants and represents to the County that
neither the Appraiser nor any of its officers or employees
have any present or contemplated future interest in the real
or personal property that is the subject of the appraisals
being made pursuant hereto, that neither the Appraiser nor any
of its officers or employees performing services hereunder
have any substantial interest as shareholder or otherwise in
Eastman Kodak and that neither the Appraiser nor any of its
Page 6 of 11 Pages
•
officers or employees 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 appraisal which are used as the
basis of the Appraiser' s analyses, opinions and conclusions
will be true and correct to the best of the Appraiser' s
knowledge and belief. The Appraiser shall have no
responsibility for legal matters, questions of survey,
opinions of title, engineering or other technical matters .
Each finding, prediction, assumption or conclusion contained
in the reports will be the Appraiser' s personal opinion and
will not be an assurance that an event will or will not occur.
IX. INDEPENDENT CONTRACTOR-INSURANCE
The Parties acknowledge that Appraiser 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, Appraiser 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.
Throughout the term of this Agreement, the Appraiser shall
maintain a policy or policies of general public liability
insurance coverage with responsible insurance companies and in
such amounts as the Parties may from time to time agree be
proper, but in no event less than $500,000 . 00 for injury to
any one person or $2, 000,000 . 00 for injuries to any number of
persons occurring in any single event.
X. ANTI-DISCRIMINATION
Appraiser will not discriminate against any employee or
applicant for employment because of race, color, religion, sex
or national origin. Appraiser will take affirmative action to
Page 7 of 11 Pages
011214
insure that applicants are employed and that employees are
treated during employment without regard to their race, color,
religion, sex or national origin, including, but not limited
to the following: employment, upgrading, demotion, transfer,
recruitment advertising, layoff, termination, rate of pay or
other forms of compensation, and selection for training
including apprenticeship. Appraiser agrees to place in
conspicuous places, available to employees and applicants for
employment, notices setting forth the provisions of this non-
discrimination clause.
XI . ASSIGNMENT AND DELEGATION
The County and Appraiser 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 Max J. Derbes, Jr. , President of the Appraiser.
Accordingly, the Appraiser agrees that all of the obligations
required of it pursuant hereto shall be performed by Max J.
Derbes, Jr. , or by other members of the Appraiser' s staff
working under the direction and control of Max J. Derbes, Jr.
Max J. Derbes, Jr. , will personally sign any appraisal report
produced pursuant to this Agreement. The parties acknowledge
that Appraiser may require the services of West Foster to
complete the above-described appraisal. In so far as West
Foster consents to and agrees with the conclusions of
Appraiser as set forth in the appraisal, Appraiser shall
obtain the signature of West Foster on the written appraisal .
With the exception of any arrangements to be made between
Appraiser and West Foster as contemplated by the terms of this
Agreement, neither this Agreement nor any of the obligations
hereunder may be assigned to any third party by Appraiser
without the prior written consent of County. Failure by
Appraiser to provide the direct services and supervision of
Max J. Derbes, Jr. , are grounds for immediate termination of
this Agreement.
XII . 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
Page 8 of 11 Pages
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.
No waiver shall be binding unless executed in writing by the
Party making the waiver.
XIII .GOVERNING LAW
This Agreement shall be construed in accordance with, and
shall be governed by the laws of the State of Colorado.
XIV. 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 effect 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.
XV.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
Max J. Derbes, Jr. , President
Max J. Derbes Real Estate Appraisers & Consultants, Inc.
3045 Ridge Lake Drive, Suite 300
Metairie, Louisiana 70002
Any Notice so mailed and Notice served by personal delivery E
shall be deemed delivered and effective upon receipt or upon
attempted delivery.
XVI .TERMINATION
This Agreement may be terminated by the County at any time and
for any reason upon giving Appraiser written Notice of such
termination, which Notice shall be given in the manner set
Page 9 of it Pages
el 4 gni',
forth in Section XV, above. Upon termination of this
Agreement prior to the completion of the delivery to County of
Appraisal as provided in Section I, above, Appraiser shall be
entitled to reasonable compensation for the services provided
up to the point of termination. The Appraiser shall have a
similar right to terminate this Agreement but only if such
termination is for cause.
XVII .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.
XVIII .AUTHORITY
Each signatory to this Agreement represents that he has full
and complete authority to bind that Party to perform any and
all provisions of this Agreement.
IN WITNESS WHEREOF, the Parties�bove named have executed his
Agreement on the ip _ day of Qipty hj6i/U , A.D. , 19 (i] .
ATTEST: Say%
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
veld County Clerk to the Board EXCUSED
Gordon E. Lacy, Chairman
// /
///,,
BY: / d )/ -//y-de.-
Deputy Clerk to the Box-d \ rge I nedy, Pro-Tem
APPROVED TO FORM: Constance L. Harbert
Oro C 6>
aC
County Attorney C. W. Kirby
/V 1,013 d
W. H. Webster
Page 10 of 11 Pages
01 :` '7' a
MAX J. DERBES, APPRAISERS AND
REAL ESTATE CONSULTANTS, INC.
CONSULTANTS, INC.
/ /
Max J. Derb sZ President
SUBSCRIBED AND SWORN TO before me this 30-n-) day of
0('-11be'r , 1991, by (bi e r I , SehPXvI al am
WITNESS my hand and official seal .
9rea IL, 7:,-40/1 Ikinp((0-2
Notary Public
My commission expires : Life
aderbes .rmm
Page 11 of 11 Pages
�_ ..
Hello