HomeMy WebLinkAbout20150420.tiff RESOLUTION
RE: APPROVE AGREEMENT FOR PROFESSIONAL SERVICES AND AUTHORIZE
CHAIR TO SIGN -GREG GERKEN
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 a Professional Services Agreement
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the County Attorney's Office, and Greg Gerken,
with 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 Professional Services Agreement between the County of Weld,
State of Colorado, by and through the Board of County Commissioners of Weld County, on
behalf of the County Attorney's Office, and Greg Gerken, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair 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 9th day of February, A.D., 2015.
BOARD OF COUNTY COMMISSIONERS
WE COUNTY, COLORADO
ATTEST: Cam( y ,,,,/ L u/&
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Weld County Clerk to the Board
• Mike Freeman, Pro-Tem
BY.
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1161
APPROVED AS TO FORM:
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County �.. r.vi' �=
Steve Moreno
Date of signature: I/19
Cc: L1p/13e)2/27
2015-0420
CA0015
=s' TO: Board of County Commissioners
, i „r 'A I gi'1S-. ` FROM: Bob Choate,Assistant County Attorney
'S
DATE: February 4, 2015
., - SUBJECT: Professional Services Agreement—Greg Gerken
Commissioners,
I request your approval of the attached Professional Services Agreement between Weld County and appraiser
Greg Gerken of the firm Hegarty&Gerken. Per Exhibit A to the PSA (Scope of Work)the services to be
provided under the contract relates exclusively to our condemnation action against DPG Farms LLC. Greg can
provide us with an detailed appraisal of the DPG property as it relates to mining valuation, and can qualify as an
expert so as to provide us with expert testimony at trial as needed.
I recommend Greg for this necessary service after extensive research. I asked multiple condemnation attorneys
for their recommendation for an appraiser who has experience valuing mining properties. I reached out to
Telesto Solutions, our retained geotechnical experts in this case, for their recommendations. Although I spoke
with multiple persons, very few had the necessary experience to be able to qualify as an expert with a particular
emphasis on mining valuation. Of the three persons who could qualify and had the resources to do the job(Greg
Gerken, Ed Moritz, Brianna Lamphiear), Greg is easily the best choice. Greg is the most experienced in this
type of valuation,has the lowest hourly rate($225 for court testimony) and his estimate to complete the initial
report(excluding testimony- $12,000-15,000)was half of the others' estimates. He also comes highly
recommended by attorney Don Ostrander, as he has provided expert testimony for Don in very similar cases to
ours.
As always,please feel free to contact me if you wish to discuss.
2015-0420
CC :
02-9'7
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN WELD COUNTY & GREG GERKEN-
WELD COUNTY V. DPG FARMS LLC CONDEMNATION LITIGATION
THIS AGREEMENT is made and entered into this gay of February 2015, by and between the
County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County
Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter referred to as
"County," and Greg Gerken, Hegarty & Gerken Inc., a corporation, who whose address is 1720 South Bellaire
Street, Denver, Colorado 80222, hereinafter referred to as "Contract Professional".
WHEREAS, County desires to retain Contract Professional as an independent Contract Professional to
perform services as more particularly set forth below; and
WHEREAS, Contract Professional has the ability, qualifications, and time available to timely perform
the services, and is willing to perform the services according to the terms of this Agreement.
WHEREAS, Contract Professional is authorized to do business in the State of Colorado and has the
time, skill, expertise, and experience necessary to provide the services as set forth below;
NOW,THEREFORE, in consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. Introduction.
The terms of this Agreement are contained in the terms recited in this document and in Exhibits A and
B, each of which forms an integral part of this Agreement. Exhibits A and B are specifically incorporated herein
by this reference. County and Contract Professional acknowledge and agree that this Agreement, including
specifically Exhibits A and B define the performance obligations of Contract Professional and Contract
Professional's willingness and ability to meet those requirements.
Exhibit A consists of the Contract Professional's Scope of Work.
Exhibit B consists of Contract Professional's Hourly Rates and Costs.
2. Service or Work. Contract Professional agrees to procure the materials, equipment and/or products
necessary for the project and agrees to diligently provide all services, labor, personnel and materials necessary
to perform and complete the project described in Exhibit A which is attached hereto and incorporated herein by
reference. Contract Professional shall coordinate with Weld County to perform the services described on
attached Exhibits A and B. Contract Professional shall faithfully perform the work in accordance with the
standards of professional care, skill, training, diligence and judgment provided by highly competent Contract
Professionals performing services of a similar nature to those described in this Agreement. Contract
Professional shall further be responsible for the timely completion, and acknowledges that a failure to comply
with the standards and requirements of Exhibits A and B within the time limits prescribed by County may result
in County's decision to withhold payment or to terminate this Agreement.
3. Term. The term of this Agreement begins upon the date of the execution of this Agreement by County,
and shall continue through and until Contract Professional's completion of the responsibilities described in
Exhibits A and B. Both of the parties to this Agreement understand and agree that the laws of the State of
Colorado prohibit County from entering into Agreements which bind County for periods longer than one year.
Therefore, within the thirty (30) days preceding the anniversary date of this Agreement, County shall notify
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Contract Professional if it wishes to renew this Contract.
4. Termination. County has the right to terminate this Agreement, with or without cause on thirty (30) days
written notice. Furthermore, this Agreement may be terminated at any time without notice upon a material
breach of the terms of the Agreement. However, nothing herein shall be construed as giving Contract
Professional the right to provide services under this Agreement beyond the time when such services become
unsatisfactory to the County.
If this Agreement is terminated by County, Contract Professional shall be compensated for, and such
compensation shall be limited to, (I) the sum of the amounts contained in invoices which it has submitted and
which have been approved by the County; (2) the reasonable value to County of the services which Contract
Professional provided prior to the date of the termination notice, but which had not yet been approved for
payment; and (3) the cost of any work which the County approves in writing which it determines is needed to
accomplish an orderly termination of the work. County shall be entitled to the use of all material generated
pursuant to this Agreement upon termination.
Upon termination, County shall take possession of all materials, equipment, tools and facilities owned
by County which Contract Professional is using, by whatever method it deems expedient; and, Contract
Professional shall deliver to County all drawings, drafts or other documents it has completed or partially
completed under this Agreement,p together with all other items, materials and documents which have been paid
for by County, and these items, materials and documents shall be the property of County. Copies of work
product incomplete at the time of termination shall be marked "DRAFT-INCOMPLETE."
Upon termination of this Agreement by County, Contract Professional shall have no claim of any kind
whatsoever against the County by reason of such termination or by reason of any act incidental thereto, except
for compensation for work satisfactorily performed and/or materials described herein properly delivered.
5. Extension or Modification. Any amendments or modifications to this agreement shall be in writing signed
by both parties. No additional services or work performed by Contract Professional shall be the basis for
additional compensation unless and until Contract Professional has obtained written authorization and
acknowledgement by County for such additional services. Accordingly, no claim that the County has been
unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be
the basis of any increase in the compensation payable hereunder. In the event that written authorization and
acknowledgment by the County for such additional services is not timely executed and issued in strict
accordance with this Agreement, Contract Professional's rights with respect to such additional services shall be
deemed waived and such failure shall result in non-payment for such additional services or work performed. In
the event the County shall require changes in the scope, character, or complexity of the work to be performed,
and said changes cause an increase or decrease in the time required or the costs to the Contract Professional for
performance, an equitable adjustment in fees and completion time shall be negotiated between the parties and
this Agreement shall be modified accordingly by a supplemental Agreement. Any claims by the Contract
Professional for adjustment hereunder must be made in writing prior to performance of any work covered in the
anticipated supplemental Agreement. Any change in work made without such prior supplemental Agreement
shall be deemed covered in the compensation and time provisions of this Agreement
6. Compensation/Contract Amount. Upon Contract Professional's successful completion of the
services, and County's acceptance of the same, County agrees to pay an amount no greater than the actual costs
of services as set forth in Exhibits A and B. Contract Professional acknowledges no payment in excess of that
amount will be made by County unless a "change order" authorizing such additional payment has been
specifically approved by the Director of Weld County Public Works, or by formal resolution of the Weld
County Board of County Commissioners, as required pursuant to the Weld County Code. Any other provision
of this Agreement notwithstanding, in no event shall County be liable for payment for services rendered and
expenses incurred by Contract Professional under the terms of this Agreement for any amount in excess of the
sum described in this section 6. Contactor acknowledges that any work it performs beyond that specifically
authorized by County is performed at Contract Professional's risk and without authorization under this
Agreement. County shall not be liable for the payment of taxes, late charges or penalties of any nature other
than the compensation stated herein.
If, at any time during the term or after termination or expiration of this Agreement, County reasonably
determines that any payment made by County to Contract Professional was improper because the service for
which payment was made did not perform as set forth in this Agreement, then upon written notice of such
determination and request for reimbursement from County, Contract Professional shall forthwith return such
payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by
County, if any, shall forthwith be returned to County.
County will not withhold any taxes from monies paid to the Contract Professional hereunder and
Contract Professional agrees to be solely responsible for the accurate reporting and payment of any taxes related
to payments made pursuant to the terms of this Agreement.
Mileage may be reimbursed if the provisions of Exhibit B permit such payment at the rate set forth in
Exhibit B. Contract Professional shall not be paid any other expenses unless set forth in this Agreement.
Payment to Contract Professional will be made only upon presentation of a proper claim by Contract
Professional, itemizing services performed and, (if permitted under this Agreement), mileage expense incurred.
Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations
under this Agreement after, nor shall any payments be made to Contract Professional in respect of any period
after December 31 of any year, without an appropriation therefore by County in accordance with a budget
adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised
Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado
Constitution, Article X, Sec. 20)
7. Independent Contract Professional. Contract Professional agrees that it is an independent Contract
Professional and that Contract Professional's officers, agents or employees will not become employees of
County, nor entitled to any employee benefits from County as a result of the execution of this Agreement.
Contract Professional shall perform its duties hereunder as an independent Contract Professional. Contract
Professional shall be solely responsible for its acts and those of its agents and employees for all acts performed
pursuant to this Agreement. Contract Professional, its employees and agents are not entitled to unemployment
insurance or workers' compensation benefits through County and County shall not pay for or otherwise provide
such coverage for Contract Professional or any of its agents or employees. Unemployment insurance benefits
will be available to Contract Professional and its employees and agents only if such coverage is made available
by Contract Professional or a third party. Contract Professional shall pay when due all applicable employment
taxes and income taxes and local head taxes (if applicable) incurred pursuant to this Agreement. Contract
Professional shall not have authorization, express or implied, to bind County to any agreement, liability or
understanding, except as expressly set forth in this Agreement. Contract Professional shall have the following
responsibilities with regard to workers' compensation and unemployment compensation insurance matters: (a)
provide and keep in force workers' compensation and unemployment compensation insurance in the amounts
required by law.
8. Subcontractors. Contract Professional acknowledges that County has entered into this Agreement in
reliance upon the particular reputation and expertise of Contract Professional. Contract Professional shall not
enter into any subcontractor agreements for the completion of this project without County's prior written
consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable
discretion to approve all personnel assigned to the subject project during the performance of this Agreement and
no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the project.
Contract Professional shall require each subcontractor, as approved by County and to the extent of the Services
to be performed by the subcontractor, to be bound to Contract Professional by the terms of this Agreement, and
to assume toward Contract Professional all the obligations and responsibilities which Contract Professional, by
this Agreement, assumes toward County. County shall have the right (but not the obligation)to enforce the
provisions of this Agreement against any subcontractor hired by Contract Professional and Contract
Professional shall cooperate in such process. The Contract Professional shall be responsible for the acts and
omissions of its agents, employees and subcontractors.
9. Ownership. All work and information obtained by Contract Professional under this Agreement or
individual work order shall become or remain (as applicable), the property of County. In addition, all reports,
documents, data, plans, drawings, records and computer files generated by Contract Professional in relation to
this Agreement and all reports, test results and all other tangible materials obtained and/or produced in
connection with the performance of this Agreement, whether or not such materials are in completed form, shall
at all times be considered the property of the County. Contract Professional shall not make use of such material
for purposes other than in connection with this Agreement without prior written approval of County.
10. Confidentiality. Confidential financial information of the Contract Professional should be transmitted
separately from the main bid submittal, clearly denoting in red on the financial information at the top the word,
"CONFIDENTIAL." However, Contract Professional is advised that as a public entity, Weld County must
comply with the provisions of C.R.S. 24-72-201, et seq., with regard to public records, and cannot guarantee the
confidentiality of all documents. Contract Professional agrees to keep confidential all of County's confidential
information. Contract Professional agrees not to sell, assign, distribute, or disclose any such confidential
information to any other person or entity without seeking written permission from the County. Contract
Professional agrees to advise its employees, agents, and consultants, of the confidential and proprietary nature
of this confidential information and of the restrictions imposed by this agreement.
11. Warranty. Contract Professional warrants that the services performed under this Agreement will be
performed in a manner consistent with the professional standards governing such services and the provisions of
this Agreement. Contract Professional further represents and warrants that all services shall be performed by
qualified personnel in a professional and workmanlike manner, consistent with industry standards, and that all
services will conform to applicable specifications.
12. Acceptance of Services Not a Waiver. Upon completion of the work, Contract Professional shall submit
to County originals of all test results, reports, etc., generated during completion of this work. Acceptance by
County of reports and incidental material(s) furnished under this Agreement shall not in any way relieve
Contract Professional of responsibility for the quality and accuracy of the project. In no event shall any action
by County hereunder constitute or be construed to be a waiver by County of any breach of this Agreement or
default which may then exist on the part of Contract Professional, and County's action or inaction when any
such breach or default shall exist shall not impair or prejudice any right or remedy available to County with
respect to such breach or default. No assent, expressed or implied, to any breach of any one or more covenants,
provisions or conditions of the Agreement shall be deemed or taken to be a waiver of any other breach.
Acceptance by the County of, or payment for, the services completed under this Agreement shall not be
construed as a waiver of any of the County's rights under this Agreement or under the law generally.
13. Insurance and Indemnification. Contract Professionals must secure, at or before the time of execution
of any agreement or commencement of any work, the following insurance covering all operations,goods or
services provided pursuant to this request.Contract Professionals shall keep the required insurance coverage in
force at all times during the term of the Agreement,or any extension thereof, and during any warranty period.
The required insurance shall be underwritten by an insurer licensed to do business in Colorado and rated by
A.M. Best Company as "A"VIII or better. Each policy shall contain a valid provision or endorsement stating
"Should any of the above-described policies by canceled or should any coverage be reduced before the expiration
date thereof,the issuing company shall send written notice to the Weld County Director of General Services by
certified mail, return receipt requested. Such written notice shall be sent thirty(30)days prior to such cancellation
or reduction unless due to non-payment of premiums for which notice shall be sent ten(10)days prior. If any
policy is in excess of a deductible or self-insured retention, County must be notified by the Contract
Professional.Contract Professional shall be responsible forthe payment of any deductible or self-insured retention.
County reserves the right to require Contract Professional to provide a bond, at no cost to County, in the
amount of the deductible or self-insured retention to guarantee payment of claims.
The insurance coverage's specified in this Agreement are the minimum requirements, and these requirements do
not decrease or limit the liability of Professional. The County in no way warrants that the minimum limits
contained herein are sufficient to protect them from liabilities that might arise out of the performance of the
work under this Contract by the Contract Professional, its agents, representatives, employees, or subcontractors.
The Contract Professional shall assess its own risks and if it deems appropriate and/or prudent, maintain higher
limits and/or broader coverages. The Contract Professional is not relieved of any liability or other obligations
assumed or pursuant to the Contract by reason of its failure to obtain or maintain insurance in sufficient
amounts, duration, or types. The Contract Professional shall maintain, at its own expense, any additional kinds
or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement.
Any modification to these requirements must be made in writing by Weld County.
The Contract Professional stipulates that it has met the insurance requirements identified herein. The Contract
Professional shall be responsible for the professional quality, technical accuracy, and quantity of all services
provided, the timely delivery of said services, and the coordination of all services rendered by the Contract
Professional and shall,without additional compensation, promptly remedy and correct any errors, omissions, or
other deficiencies.
INDEMNITY: The Contract Professional shall defend, indemnify and hold harmless County, its officers,
agents, and employees, from and against injury, loss damage, liability, suits, actions, or willful acts or omissions
of Contract Professional, or claims of any type or character arising out of the work done in fulfillment of the
terms of this Contract or on account of any act, claim or amount arising or recovered under workers'
compensation law or arising out of the failure of the Contract Professional to conform to any statutes,
ordinances, regulation, law or court decree. The Contract Professional shall be fully responsible and liable for
any and all injuries or damage received or sustained by any person, persons, or property on account of its
performance under this Agreement or its failure to comply with the provisions of the Agreement, or on account
of or in consequence of neglect of the Contract Professional in its methods or procedures; or in its provisions of
the materials required herein, or from any claims or amounts arising or recovered under the Worker's
Compensation Act, or other law, ordinance, order, or decree. This paragraph shall survive expiration or
termination hereof. It is agreed that the Contract Professional will be responsible for primary loss investigation,
defense and judgment costs where this contract of indemnity applies. In consideration of the award of this
contract, the Contract Professional agrees to waive all rights of subrogation against the County its associated
and/or affiliated entities, successors, or assigns, its elected officials,trustees, employees, agents, and volunteers
for losses arising from the work performed by the Contract Professional for the County. A failure to comply
with this provision shall result in County's right to immediately terminate this Agreement.
Proof of Insurance: County reserves the right to require the Contract Professional to provide a certificate
of insurance, a policy, or other proof of insurance as required by the County's Risk
Administrator in his sole discretion.
Additional Insureds: For general liability, excess/umbrella liability, pollution legal liability, liquor
liability, and inland marine, Contract Professional's insurer shall name County as an additional
insured.
Waiver of Subrogation: For all coverages, Contract Professional's insurer shall waive subrogation
rights against County.
Subcontractors: All subcontractors, independent Contract Professionals, sub-vendors, suppliers or other
entities providing goods or services required by this Agreement shall be subject to all of the
requirements herein and shall procure and maintain the same coverage's required of Contract
Professional. Contract Professional shall include all such subcontractors, independent Contract
Professionals, sub-vendors suppliers or other entities as insureds under its policies or shall ensure that all
subcontractors maintain the required coverages. Contract Professional agrees to provide proof of
insurance for all such subcontractors, independent Contract Professionals, sub-vendors suppliers or
other entities upon request by the County.
14. Non-Assignment. Contract Professional may not assign or transfer this Agreement or any interest therein
or claim thereunder, without the prior written approval of County. Any attempts by Contract Professional to
assign or transfer its rights hereunder without such prior approval by County shall, at the option of County,
automatically terminate this Agreement and all rights of Contract Professional hereunder. Such consent may be
granted or denied at the sole and absolute discretion of County.
15. Examination of Records. To the extent required by law, the Contractor agrees that any duly authorized
representative of County, including the County Auditor, shall have access to and the right to examine and audit
any books, documents, papers and records of Contractor, involving all matters and/or transactions related to this
Agreement. The Contractor agrees to maintain these documents for three years from the date of the last payment
received.
16. Interruptions. Neither party to this Agreement shall be liable to the other for delays in delivery or failure
to deliver or otherwise to perform any obligation under this Agreement, where such failure is due to any cause
beyond its reasonable control, including but not limited to Acts of God, fires, strikes, war, flood, earthquakes or
Governmental actions.
17. Notices. County may designate, prior to commencement of work, its project representative ("County
Representative") who shall make, within the scope of his or her authority, all necessary and proper decisions
with reference to the project. All requests for contract interpretations, change orders, and other clarification or
instruction shall be directed to County Representative. The County Representative for purposes of this
Agreement is hereby identified as, Director of Weld County Department of Public Works, or his designee. All
notices or other communications (including annual maintenance made by one party to the other concerning the
terms and conditions of this contract shall be deemed delivered under the following circumstances:
(a) personal service by a reputable courier service requiring signature for receipt; or
(b) five (5) days following delivery to the United States Postal Service, postage prepaid addressed to a
party at the address set forth in this contract; or
(c) electronic transmission via email at the address set forth below, where a receipt or acknowledgment
is required by the sending party; or
(d) transmission via facsimile, at the number set forth below, where a receipt or acknowledgment is
required by the sending party.
Either party may change its notice address(es) by written notice to the other.
Notification Information:
Contract Professional: Hegarty and Gerken, Inc.
Attn.: Gregory T. Gerken
Address: 1720 S. Bellaire Street
Denver, Co. 80222
E-mail: HNGINC@aol.com
Facsimile:303-757-3943
With copy to: Same
Name:
Position:
Address:
Address:
E-mail:
Facsimile:
County:
Name: Robert Frick
Position: County Attorney
Address: 1150 '0' Street
Address: Greeley, Colorado 80632
E-mail: rfrick@weldgov.com
Facsimile: (970) 352-0242
18. Compliance with Law. Contract Professional shall strictly p ct comply with all applicable federal and State
Y P Y Pp
laws, rules and regulations in effect or hereafter established, including without limitation, laws applicable to
discrimination and unfair employment practices.
19. Non-Exclusive Agreement. This Agreement is nonexclusive and County may engage or use other
Contract Professionals or persons to perform services of the same or similar nature.
20. Entire Agreement/Modifications. This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject matter
contained in this Agreement. This instrument supersedes all prior negotiations, representations, and
understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement
may be changed or supplemented only by a written instrument signed by both parties.
21. Fund Availability. Financial obligations of the County payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. Execution
of this Agreement by County does not create an obligation on the part of County to expend funds not otherwise
appropriated in each succeeding year.
22. Employee Financial Interest/Conflict of Interest—C.R.S. §§24-18-201 et seq. and §24-50-507. The
signatories to this Agreement aver that to their knowledge, no employee of Weld County has any personal or
beneficial interest whatsoever in the service or property which is the subject matter of this Agreement. County
has no interest and shall not acquire any interest direct or indirect, that would in any manner or degree interfere
with the performance of Contract Professional's services and Contract Professional shall not employ any person
having such known interests. During the term of this Agreement, Contract Professional shall not engage in any
in any business or personal activities or practices or maintain any relationships which actually conflicts with or
in any way appear to conflict with the full performance of its obligations under this Agreement. Failure by
Contract Professional to ensure compliance with this provision may result, in County's sole discretion, in
immediate termination of this Agreement. No employee of Contract Professional nor any member of Contract
Professional's family shall serve on a County Board, committee or hold any such position which either by rule,
practice or action nominates, recommends, supervises Contract Professional's operations, or authorizes funding
to Contract Professional.
23. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without
such provision, to the extent that this Agreement is then capable of execution within the original intent of the
parties.
24. Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a
waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the
Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended.
25. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and
conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to
the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action
whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned
parties that any entity other than the undersigned parties receiving services or benefits under this Agreement
shall be an incidental beneficiary only.
26. Board of County Commissioners of Weld County Approval. This Agreement shall not be valid until it
has been approved by the Board of County Commissioners of Weld County, Colorado or its designee.
27. Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant thereto, shall be
applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or
incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void.
In the event of a legal dispute between the parties, Contract Professional agrees that the Weld County District
Court shall have exclusive jurisdiction to resolve said dispute.
28. Attorneys Fees/Legal Costs. In the event of a dispute between County and Contract Professional,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney
fees and/or legal costs incurred by or on its own behalf.
29. Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra judicial
body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be
null and void.
Acknowledgment. County and Contract Professional acknowledge that each has read this Agreement,
understands it and agrees to be bound by its terms. Both parties further agree that this Agreement, with the
attached Exhibits A and B, is the complete and exclusive statement of agreement between the parties and
supersedes all proposals or prior agreements, oral or written, and any other communications between the parties
relating to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this / day of February 2015.
CONTRACT PROFESSIONAL:
By:
Atty
Date 4/5/2015
Name: Gregory T. Gerken, MAI
Title: V.P.
WELD COrtaft
ATTEST: G/•L�W/ ��!!o . BOARD OF COUNTY COMMISSIONERS
Weld C y lerk to the : ;� ��W D COUNTY, CO ORADO
BY:
Deputy CI=y to the Boa 1{j . arbara Kirkme er, Chai FEB 0 9 2015
APPROVED A�S TO FUNDING: APPRO E TO SUBSTANCE:
111,
Controller ecte ici I or Department Head
APPROVED AS TO FORM: A7/j-
4-5. /� Q��` Director of General Services
County Attorney /C
Gob:ne FXL:b,�s A tB
HEGARTY& GERKEN, INC.
Tower Colorado Building
1720 South Bellaire Street,Suite 806
Denver,Colorado 80222
(303) 757-3801 voice(303) 757-3943 facsimile
Charles J liegarty.MAI
Gregory T.Gerken,MAI
February 5, 2015
Mr. Bob Choate
Assistant Weld County Attorney
1150 "O" Street
Greeley, Colorado, 80632
Re: Appraisal Services for D.P.G. Farms, LLC Property, Weld County,
Colorado
Dear Mr. Choate:
Based on my conservations with you and my preliminary research of the D.P.G. Farms,
LLC, property I would be pleased to provide you with appraisal services for this property
located in Weld County, Colorado. This letter will constitute my Proposal for furnishing
professional appraisal services to you. When accepted by you, it will serve as the contract
between us.
1. "Client", as referred to herein, means The County of Weld, Colorado
2. "Consultant", as referred to herein means Hegarty & Gerken, Inc., a Colorado
Corporation.
3. Purpose of the Appraisal Services: Consultant's studies and analyses will be
undertaken in order to prepare rebuttal reports on the D.P.G. Farms, LLC property in
an eminent domain matter. The reports being reviewed are from the Peterson
Appraisal Company and the Varra Company. I will also be reviewing reports from
Telesto and Nelson Bowes that were prepared for Weld County. The consultant will
also be available to testify to his findings in this eminent domain matter.
4. Scope of Services: The scope of services to be furnished will include all of the
procedures normally performed for a complete appraisal review assignment on a
parcel of vacant land.
5. Client-Furnished Materials: This Proposal is predicated on the assumption that the
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NEGARTY&GERKEN,INC.
Real Estate Appraisers&ConsW(ann
following additional materials are furnished to Consultant by Client:
o Title Work on the property(if available).
6. Disputes: Any disputes arising between Consultant and Client relative to services
covered under this contract, which cannot be settled by mutual negotiation, may, upon
agreement of both parties, be submitted to arbitration under the rules of the American
Arbitration Association.
7. Schedule: Consultant agrees to proceed with his investigations forthwith, consistent
with other prior commitments. A written rebuttal report for disclosures purposes will be
delivered to Client's Counsel (Hamre, Rodriguez, Ostrander & Dingess, P.C.) on, or
before, March 2, 2015, assuming Consultant receives written Notice to Proceed and
the Client-Furnished Materials by February 10, 2014.
8. Professional Fees: Gregory T. Gerken, MAI and Charles J. Hegarty, MAI charges for
preparation of the rebuttal reports will be charged at $225 per hour. Other personnel if
used during this assignment will be billed as follows; Roger Price, SRA at $125 per
hour, and any other assistants used in the preparation the appraisal report will be
charged at$75.00 per hour. Professional services for the preparation and presentation
of expert testimony at deposition or trial are billed at the rate of$235.00 per hour, plus
incidental expenses. These rates are subject to change on an annual basis upon
written notification to the client.
Payment from Client is due within thirty (30) days of the date of the invoice. Finally,
Client will be responsible for any costs of collection, including attomey's fees and
associated legal expenses.
9. Acceptance: If this Proposal meets with your approval and you wish Consultant to
proceed with the work, please so indicate in the place provided below, returning one
executed copy to our office and retaining one copy for your files. My receipt of the
acknowledged copy of the Proposal by February 10, 2015, will serve as Notice to
Proceed with the work outlined herein.
I appreciate this opportunity to submit this Proposal and look forward to working with you
on this project.
Respectfully submitted,
HEGARTY& GERKEN, INC.
fet
Gregory T. Gerken, MAI
Attachments
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HRZJAR]'Y&( RICAN!N('.
Real I.stale Approleers&(breulmme
PROPOSAL ACCEPTANCE:
Client hereby accepts the foregoing Proposal (including attachments) as written, and
agrees to all conditions contained therein. Notice to Proceed is hereby given.
Mr. Bob Choate
By: See approved Agreement page Dated: , 2015
Authorized signature
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HKGARIY&GERKEN.IN(.
Real E:imte Appraisers&Consultants
SUMMARY OF EXPERIENCE AND QUALIFICATIONS
GREGORY T.GERKEN, MM
EDUCATION
O M.R.E.C.M., University of Denver, Denver, Colorado (1994); Master of Real Estate and
Construction Management.
O B.S., Northern Arizona University, Flagstaff,Arizona(1981); Bachelor of Science in Industrial
Management.
O Certificate of Completion—Valuation of Conservation Easement Certificate Program (2008)
O Certificate of Achievement—Requirements of UASFLA—The"Yellow Book"
EXPERIENCE
O Over twenty five years of experience in appraising numerous commercial, residential,
and industrial properties and vacant land. Eight years of progressive experience in pro-
fessional sports, product marketing and industrial plant management.
O Has testified as an expert witness concerning real estate valuations in Gunnison
County, Weld County, Boulder County, Broomfield County, Denver County, Adams
County, Pueblo County, Gilpin County, Park County, and Jefferson County District
Courts.
PROFESSIONAL AFFILIATIONS
O Member(MAI), The Appraisal Institute
O Certified General Appraiser, State of Colorado, (#CG01315799)
CLIENTELE
O Partial listing of clientele served includes:
US Bank City of Aurora
Lincoln Property Company City of Arvada
Corum Real Estate Group, Inc. City of Lakewood
Baca County Commissioners Adams County Housing Authority
Cargill Financial Services Corp. Denver Housing Authority
Wells Fargo Bank The Trust for Public Land
Resolution Trust Corporation Federal Deposit Insurance Corporation
Hallett Construction Company E-470 Public Highway Authority
Citywide Bank Cellular One
Colorado Dept. of Transportation Atchison,Topeka and Santa Fe Railroad
Vectra Bank-Southwest Branch Numerous other individuals&attorneys
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HEGAR7Y&GERKEN,INC.
Real Estate Appraisers&Consultants
SUMMARY OF EXPERIENCE AND QUALIFICATIONS
CHARLES J. HEGARTY, MAI
Principal Appraiser
EDUCATION
O M.B.A., University of Denver, Denver, Colorado (1984); Master of Business Administration.
Finance.
O B.S., Colorado State University, Fort Collins, Colorado (1980); Bachelor of Science.
Accounting
O Certificate of Completion—Valuation of Conservation Easement Certificate Program (2012)
EXPERIENCE
O Twenty eight years of progressive experience in appraising real estate interests including
valuations used in litigation, bankruptcy proceedings, casualty insurance settlements, lease
negotiations, Ad Valorem tax assessment appeals and Eminent Domain activities.
O Six years of progressive experience in public accounting including financial consulting and
auditing for energy companies, construction firms, municipal governments, real estate
developers and private colleges. Financial consulting projects have included debt
restructuring and profit improvement programs for troubled real estate developments, and
financial feasibility studies for new commercial and residential development projects.
Extensive micro-computer applications involvement.
O Testified as an expert witness concerning real estate valuations in United States Bankruptcy
Court, and Adams County, Arapahoe County, Boulder County, Clear Creek, Denver County,
Douglas County, Logan County, Summit County, Grand County, Pueblo County, El Paso
County, Pitkin County, Gilpin County, Weld County, and Mesa County District Courts.
PROFESSIONAL AFFILIATIONS
O Member(MAI),Appraisal Institute, (National Finance Committee Member 1994/1996)
O Certified General Appraiser, State of Colorado, (#CG1313146)
O Member, Colorado Society of Certified Public Accountants
CLIENTELE
O Partial listing of clientele served includes:
Denver Water General Services Administration
Colorado Department of Transportation City of Arvada
Routt County Sheridan Redevelopment Agency
First Bank, N.A. Superior Urban Renewal Authority
Xcel Energy E-470 Public Highway Authority
Tri-State Generation & Transmission City of Aurora
Association, Inc. City of Lafayette
Vectra Bank Regional Transportation District
Real Capital Solutions City of Boulder
City of Black Hawk Lincoln National Life Insurance Company
City of Colorado Springs Num r
Numerous other individuals&attorneys
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