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HomeMy WebLinkAbout20140926.tiff RESOLUTION RE: APPROVE AGREEMENT FOR PROFESSIONAL SERVICES AND AUTHORIZE CHAIR TO SIGN -TELESTO SOLUTIONS INC. 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 Professional Services between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Telesto Solutions, Inc., 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 Agreement for Professional Services between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Telesto Solutions, Inc., 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 24th day of March, A.D., 2014. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: d. / jefep;ti EXCUSED Douglas Rademacher, Chair Weld County Clerk to the Board \` ;,Lam EXCUSED arbara Kirkmeyer, Pro-Tem De. Clerk to the Boa I an P. Conway Pit APPRO D AS T RM: *®( �,✓ ar . - . ttorney / ca, Actng Chair Pro-Tem `y Date of signature: 3'(4 GC en Lb.e), Pp) (3i-'), apt. 1--18.aoI 2014-0926 EG0070 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made this / V i'day of March 2014, by and between Telesto Solutions Inc., whose address is 2950 East Harmony Road, Suite 200, Fort Collins, Colorado 80528, hereinafter referred to as "Contractor," and 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." WHEREAS, County desires to retain Contractor as an independent contractor to perform services as more particularly set forth below; and WHEREAS, Contractor has the time available to timely perform the services, and is willing to perform the services according to the terms of this Agreement. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. Engagement of Contractor. County hereby retains Contractor, and Contractor hereby accepts engagement by County upon the terms and conditions set forth in this Agreement. 2. Term. The term of this Agreement shall be from the date of execution by all parties through and until the completion of the County's condemnation action in case 14CV30182. 3. Services to be Performed. Contractor agrees to perform the Services listed or referred to in Exhibit A, attached hereto and incorporated herein. 4. Compensation. a. County agrees to pay Contractor for services performed as set forth on Exhibit A and at the rates described in Exhibit A. Charges shall be based on the time actually spent performing the services, but shall exclude travel time. b. Mileage may not be charged to and from any required job site. Contractor shall not be paid any other expenses unless set forth in this Agreement. c. Payment to Contractor will be made only upon presentation of a proper claim by Contractor, itemizing services performed and mileage expense incurred. d. County agrees to pay Contractor on an hourly basis for Contractor's services according to the rates set forth on Exhibit A. Contractor will issue invoices to County on a monthly basis briefly identifying the services provided and the number of hours spent on each major task for that billing period. County will have fifteen days to review each invoice. If County does not raise any objection within such 15-day period, the invoice will be deemed approved and accepted by County. Payment is due within 1 2014-0926 thirty (30) clays of invoice receipt and must be sent to the payment address appearing on the invoice. Invoices not paid within thirty days shall be subject to interest at the rate of 1% per month (12% per year), accruing from the 31st day after County's receipt of the invoice. If County disputes any invoice and provides written notice of the grounds for the dispute (in reasonable detail) within 15 days after receipt of the invoice, then the Parties shall cooperate in good faith to resolve the dispute and the deadline for payment of the disputed amount only shall be extended for an additional 30 days; provided, however, that if County fails to pay the disputed amount and a court or other tribunal of competent jurisdiction subsequently orders County to pay the disputed amount to Contractor, then interest on the unpaid amount shall begin to accrue as of the 31st day after County's receipt of the invoice. Contractor reserves the right to stop work at any time without liability for breach of contract or otherwise if County fails to comply with the payment terms specified herein. 5. Additional Work. 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 Contractor 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 Contractor 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. Independent Contractor. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Contractor shall be solely responsible for its acts and those of its agents and employees for all acts performed pursuant to this Agreement. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of County. Contractor and 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 Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes (if applicable) incurred pursuant to this Agreement. Contractor shall not have authorization, express or implied, to bind County to any agreement, liability or understanding, except as expressly set forth in this Agreement. Contractor 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 and(b)provide proof thereof when requested to do so by County. 7. Warranty. Contractor warrants that 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. 2 8. Reports County Property. All reports, test results and all other tangible materials 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. Contractor shall not make use of such material for purposes other than in connection with this Agreement without prior written approval of County. 9. Acceptance of Product not a Waiver. Upon completion of the work, Contractor 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 furnished under this Agreement shall not in any way relieve Contractor of responsibility for the quality and accuracy of the work. Acceptance by the County of, or payment for, any services performed 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. 10. Insurance and Indemnification. Contractor shall defend and indemnify County, its officers and agents, from and against loss or liability arising from Contractor's acts, errors or omissions in seeking to perform its obligations under this Agreement. Contractor shall provide necessary workers' compensation insurance at Contractor's own cost and expense. 11. Termination. The County m.ay terminate this Agreement at any time by providing Contractor with 30 days written notice thereof. Furthermore, this Agreement may be terminated at any time without notice upon a material breach of the terms of the Agreement. In the event of an early termination, Contractor shall be paid for work performed up to the time of notice and County shall be entitled the use of all material generated pursuant to this Agreement. Unless specifically requested in writing by the County, Contractor shall cease all work related to this agreement upon receipt of the County notice to terminate. 12. Non-Assignment. Contractor may not assign or transfer this Agreement, any interest therein or claim thereunder, without the prior written approval of County. 13. Access to Records. County shall have access to Contractor's financial records as they relate to this Agreement for purposes of audit. Such records shall be complete and available for audit 90 days after final payment hereunder and shall be retained and available for audit purposes for at least five years after final payment hereunder. 14. Time of Essence. Time is of the essence in each and all of the provisions of this Agreement. 15. 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. 3 16. Notices. Any notice required to be given under this Agreement shall be in writing and shall be mailed or delivered to the other party at that party's address as stated above. 17. Compliance With Law. Contractor shall strictly comply with all applicable federal and State laws, rules and regulations in effect or hereafter established, including without limitation, laws applicable to discrimination and unfair employment practices. 18. Non-Exclusive Agreement This Agreement is nonexclusive and County may engage or use other contractors or persons to perform services of the same or similar nature. 19. Certification. Contractor certifies that Contractor is not an illegal immigrant, and further, Contractor represents, warrants, and agrees that it has verified that Contractor does not employ any illegal aliens. If it is discovered that Contractor is an illegal immigrant, employs illegal aliens or subcontracts with illegal aliens, County can terminate this Agreement and Contractor may be held liable for damages. 20. Entire Agreement/Modifications. This Agreement contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiation, representation, and understanding 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. By execution of this Agreement, County does not warrant that funds wilt be available to fund this Agreement beyond the current fiscal year. 22. No Conflict. No employee of Contractor nor any member of Contractor's family shall serve on a County Board, committee or hold any such position which either by rule, practice or action nominates, recommends, supervises Contractor's operations, or authorizes funding to Contractor. 23. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable,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 Beneficiaij It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to 4 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. 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. Venue for any action arising under this Agreement shal lie in the state district courts in and for Weld County, Colorado. 28. Public Contracts for Services. C.R.S. §8-17.5-101. Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in the E-Verify program of the Department program established pursuant to C.R.S. §8-17.5-102(5)(c). Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify with Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Contractor (a) shall not use E-Verify Program or Department program procedures to undertake pre-employment screening or job applicants while this Agreement is being performed, (b) shall notify the subcontractor and Weld County within three (3) days that Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien and (c) shall terminate the subcontract if a subcontractor dues not stop employing or contracting with the illegal alien within three (3) days of receiving notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to C.R.S. §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to County, a written notarized affirmation that it has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or of C.R.S. §8-17.5-101 et seq., County, may terminate this Agreement for breach, and if so terminated, Contractor shall be liable for damages. 29. 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 County has any personal or beneficial interest whatsoever in the service or property which is the subject matter of this Agreement. Contractor has no interest and shall not acquire any interest direct or indirect, which would in any manner or degree with the performance of Contractor's 5 services and Contractor shall not employ any person having such known interests. During the term of this Agreement, Contractor shall not engage in any in any business or personal activities or practices or maintain any relationships which actually conflict with or in any way appear to conflict with the full performance of its obligations under this Agreement. Failure by Contractor to ensure compliance with this provision may result, in County's sole discretion, in immediate termination of this Agreement. 30. Attorneys Fees/Legal Costs. In the event of a dispute between County and Contractor, 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. 31. No Consequential Damages.Neither Party will under any circumstances be liable to the other Party or any third party for any indirect, incidental,special or consequential damages(including loss of anticipated profits,business interruption, goodwill or other economic or commercial loss)relating to this Agreement or the services rendered. IN WITNESS WHEREOF,the parties have executed this Agreement as of the date and year written below. CONTRACTOR: ✓ To %co La t:W*5, ris�i By: / Le,41 Title: GE BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: C� daitifwv `I• r�_;&k, William F. Garcia, Acting Chair Pro-Tem Weld County Clerk to the Bo MAR 2 4 2014 St �` BY Deputy Cler the Board O ' lfii► F �/[ Di� (?Ili 141Y aoly,,;?‘ EXHIBIT A TELESTO s, L u T r o N s. i J c o K p o H A r e o February 26,2014 Bruce T. Barker Weld County Attorney PO Box 758 1150 "O" Street Greeley, CO 80632 Subject: CR 49 Extension Project Sand and Gravel Resource Evaluation Dear Bruce: Telesto Solutions, Inc. (Telesto) is pleased to offer to Weld County the following scope of work to evaluate the potential value of the County's taking associated with the proposed County Road (CR)49 extension project. We hope that after meeting with you on February 13, we have a clear understanding of the project, and your needs. Our understanding of the problem is: Weld County plans to extend CR 49 north from Highway 34, across the South Platte River, and eventually connecting to CR 60 %2. Between Highway 34 and CR 60 1/2, a plot of land, currently used for hunting, is in dispute as to best and highest land use. The current owner believes the best and highest use is a sand and gravel quarry. Our goal will be to provide Weld County with an evaluation of the validity of the different approaches that Varra and Weld County used to value the property. Telesto will provide three phases of work, as may be necessary for Weld County. In phase 1 (Initial Evaluation), Telesto will review existing data assumptions and unit costs used in both resource evaluation reports, research our own units costs, and estimate the quantity of aggregate that would make the property a viable resource. Depending on the outcome of this analysis, Telesto will make a recommendation as to whether phase 2 is appropriate. In phase 2 (Borings), if needed, Telesto will obtain updated geotechnical data by causing borings to be taken from the subject property, and will conduct a new analysis based upon the updated information. From this analysis Telesto will create an updated valuation report. In phase 3 (Expert Testimony), Telesto will provide expert testimony in or out of court as may be needed to support the valuation report in Weld County's condemnation action. Such expert testimony will be provided pursuant to the attached rate schedule. Colorado Office (Corporate) Arizona Office New Mexico Office 2950 East Harmony Road,Sufle 200 5343 North 16t Street,Suite 130 1303 Pope Street,Suite A Fort Coins,Colorado 80528 Phoenix,Arizona 85016 Sher City,New Mexico 88061 970.464-77041970-484-7789(FAX) 602-314-4566 575-538-5620!575-538-5625(FAX) Bruce Barker February 26, 2014 Page 2 SCOPE OF WORK PHASE 1 (INITIAL EVALUATION) Review Existing Data Telesto will review data provided by Weld County including the Varra property assessment, Weld County's assessment, and Weld County's County Road (CR) 49 plans. The assumptions and approaches from Weld County and Varra used to calculate the resource/property value and return on capital will be evaluated. In addition, comparable properties will be reviewed with regard to general location, depth to groundwater, and basic geology to determine if they may truly be comparable as the Varra appraisal relies heavily on this premise. Telesto will summarize existing data for presentation with our assessment. Resource Estimate Telesto will assess the Varra and Weld County resource value estimates. The effort will focus on reconciling and investigating the differences between the two reports, and will extract pertinent information to help create Telesto's screening-level estimate. The screening-level estimate will consider a mine with a road through the mine and without. Based on the resource estimate, Telesto will evaluate the prospective, mineable quantities of aggregate. Telesto will develop unit costs and unit sale prices utilizing the Varra and Weld County reports, and data from local gravel pits. Telesto will develop a conceptual-level dewatering plan and cost estimate that will be used in the unit cost estimate. The unit cost and unit sale data then allow a value to be estimated for the entire resource (i.e., the mine without CR-49 bisecting the property). If the screening-level estimate shows that the resource has the potential to be viable, Telesto will use our mining experience to evaluate the impacts from splitting the gravel resource with CR-49. We will evaluate mining options that could affect the unit costs, and compare those options to the one chosen by Varra, which includes an overhead conveyor system. From this resource estimate exercise, Telesto will prepare a presentation for discussion with Weld County regarding: (1) the viability of mining resources on the entire property, including the property's valuation, and (2) the valuation of the property as a mining resource if CR 49 is constructed to bisect the property, including potential costs relating thereto. We anticipate that during this meeting/presentation, Weld County will have enough information to decide whether additional borings are required as contemplated for phase 2. Phase 1 Schedule Telesto anticipates that the review of existing data and development of the resource estimate will 2014022020140226_Gravct_proposal.docx Bruce Barker February 26,2014 Page 3 take approximately six (6) weeks. PHASE 2 SUPPLEMENTAL DATA COLLECTION Based on Phase 1, Telesto may proceed to additional data collection after consultation with Weld County. Additional data would be collected to verify the assumptions used in calculating the gravel resource estimate at the property. Telesto would likely implement a sonic-drilling program (or similar) between the locations documented in WesTest's report issued to Varra Companies on August 20, 2012. Core samples will be collected using sonic drilling techniques and submitted for geotechnical testing. Telesto would use the new data to complete an independent assessment. The advantage of sonic drilling is that samples will more closely reflect the composition of the geologic formation. Previous samples were collected solely from auger drilling, and the samples were only"cuttings" that were brought to the surface by drilling. This method may have skewed the results of the gradation analyses, and would not be expected to be as representative of the formation as sonic drilling. Costs to complete the data collection will be provided after discussion with Weld County as to the need and extent required.e q u red. Phase 2 Schedule Telesto anticipates that this task would take approximately four (4) to six(6) weeks to complete, and would be dependent on availability of a drilling contractor. PHASE 3—EXPERT TESTIMONY Telesto will provide expert testimony in or out of court as may be needed to support the valuation report in Weld County's condemnation action. Such expert testimony will be provided pursuant to the attached rate schedule. COST FOR PHASE 1 (INITIAL EVALUATION) Telesto anticipates the scope of work for phase 1 (Initial Evaluation) described above can be completed for a time-and-materials cost not to exceed $62,500. Terms of completing the work, invoicing, and payment will be detailed in a purchase order or contract, mutually agreed upon by both Weld County and Telesto. The cost of phase 2 (Borings) will depend upon the number of borings needed and shall be negotiated separately. The cost of phase 3 (Expert Testimony) shall be according to the attached rate schedule and be negotiated separately. 201402202014022b GravcI_proposal.docx Bruce Barker February 26, 2014 Page 4 THE TELESTO TEAM April Tischer, P.E., Project Engineer. April has more than 7-years experience involved in mine- site engineering, cost estimating, mine site planning, and closure planning. Her experience with estimating operations and closure costs at mine sites will be especially pertinent to the work on this project. Kurt Stauder, P.G., Senior Geologist. Kurt has more than 8-years experience in mine site and exploration geology. He has directed many large-scale field projects, and is an expert in drilling methods and geological data collection. His expertise will be critical to evaluating existing data, and in designing a field program to ensure that data collected are relevant, and are collected efficiently. Adam Hoffman, P.E., Senior Engineer. Adam will serve as project manager and primary client contact. Adam has 25 years of experience in environmental consulting. He will be primarily responsible for ensuring the client's needs are met by the work completed and the documentation that is prepared. Walter Niccoli, P.E., Principal Engineer. Walt has more than 25 years of experience in groundwater and civil engineering. His work on mine sites, with Mine Plans of Operation, feasibility studies, and other aspects of mine-related work are directly relevant to this project. Dale Leach, CGMA. Dale has over 40 years of experience in business operation and development. He has helped many clients assess business viability through detailed market analyses,business operations planning,and asset management. Telesto is happy to provide the above services to Weld County. We are confident that our technical expertise and directly relevant experience will allow us to help you on this project. We look forward to working with you. Sincerely, Telesto Solutions, Inc. Adam Hoffman, P.E. Senior Engineer AHH:ks,at,wn 2014022020140226_Gravel_proposaLJocx 2950 East Harmony Road, Suite 200 TELESTO Fort Collins, Colorado 80528 970-484-7704/970-484-7789(FAX)SOLUTIONS •I Ii<::: i 1;A 0 RATES TIME AND MATERIALS Effective January 1,2014—December 31, 2014 Billing Rates Charges for field and office work performed on projects is calculated and billed on the basis of staff category hourly rates as shown below in U.S.currency. Work continuing beyond the above effective dates could be subject to new rates that could be established for each new fiscal year. The rates listed below have been adjusted for overhead and fee. Staff Category Rate/Hour Sta ff Category Rate/Hour Principal or Senior Engineer/Scientist $125-$175 Technician $70-$90 Project Engineer/Scientist $90-$130 AutoCad $80-$90 Engineer/Scientist $90-$100 Clerical/Admin. $65 -$90 All staff personnel have been classified in the above stated categories based on discipline skills,education,and level of experience. Time spent in travel within the contiguous U.S.will be billed in accordance with the rate schedule listed,except that no more than eight hours of travel time will be charged in any single day. Overtime hours, if authorized by the client,will be charged according to the above listed rate schedule. Table 1- Employee Billing Rates Adam Hoffman $ 175.00 Senior Engineer — April Tischer $ 110.00 Engineer Dale Leach - $ 160.00 Water Resources Eddie Humphrey $ 150.00 Senior Engineer Garret AllsuQ $ 125.00 Surveyor Jennifer Davis _ $ 90.00 Hydrogeologist Jerry Donaldson $ 130.00 Resource Coordinator Jim Finley $ 175.00 Principal/Senior Geochemist Jim Robb $ 130.00 Geospatial Technologies Director Jim Wright $70.00 Surveyor Tech Jon Cullor $ 120.00 Engineer Kelly Donahue $ 105.00 Geochemist Kurt Stauder $ 115.00 Senior Geologist Mike Benham $ 95.00 Environmental Engineer Morgan Fay $ 100.00 Engineer Parker Coit $ 85.00 Geologist Shauna Shanks $ 70.00 Surveyor Sheila Logan $ 175.00 Director of Environmental Planning Sriram Ananthanarayan $ 115.00 Engineer Steve Klein $ 150.00 Senior Engineer Tracy Emmanuel $ 100.00 Project Scientist Walt Niccoli $ 175.00 Principal/Senior Engineer Wendy Seaman $ 90.00 Admin Assistant Note:Expert Testimony and testimony prep is billed at two times standard rates. 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