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HomeMy WebLinkAbout24-125 Approving an Agreement for Professional Services with the Town and LRE Water, INC 12-18-2024WHEREAS, LRE Water, Inc., ("LRE"), provides water engineering consulting services for the Town of Firestone ("Town") which includes, developing strategies and tactics to manage and direct projects and initiatives related to; water rights and water supply, water delivery, reuse of water and the review and update as necessary strategies for the delivery of water to the Town from multiple sources, and advise and consult the Town regarding intergovernmental agreements; and WHEREAS, LRE is also involved in the update of the Town's Water Action Plan and provides services to the Town's Water Counsel for pending water court matters; and WHEREAS, WRE has performed such services for the Town since 2017 and given their skill, experience and expertise it is in the best interest of the Town to continue its relationship with LRE, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: The Agreement for Professional Services between the Town of Firestone and LRE Water, Inc., is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to sign the Agreement. INTRODUCED, READ AND ADOPTED this 18`h day of December, 2024. yor ATTEST: 4. 1h44 ,,c,cco Missy Carranco, Deputy Town Clerk AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement") is made and entered into this 3rd day of December, 2024 (the "Effective Date"), by and between the TOWN OF FIRESTONE, a Colorado municipal corporation with an address of 9950 Park Avenue, Firestone, Colorado 80504 (the "Town"), and LRE Water, an independent Contractor with a principal place of business at 1221 Auraria Parkway, Denver, Colorado 80204 (the "Contractor"), each (a "Party") and collectively (the "Parties"). WHEREAS, the Town requires professional services and WHEREAS, Contractor has held itself out to the Town as having the requisite expertise and experience to perform the required professional services. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: SCOPE OF SERVICES A. Contractor shall furnish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Services set forth in Exhibit A, attached hereto and incorporated herein by this reference and known as Water Engineering Consulting Services B. A change in the Scope of Services shall not be effective unless authorized as a modification to this Agreement. If the Contractor proceeds without such written authorization, Contractor shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date and shall continue until Contractor completes the Scope of Services to the satisfaction of the Town or until terminated as provided herein. B. Either Party may terminate this Agreement upon 30 days advance written notice. The Town shall pay the Contractor for all work previously authorized and completed prior to the date of termination. If, however, Contractor has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. III. COMPENSATION In consideration for the completion of the Scope of Services by Contractor, the Town shall pay Contractor an amount not to exceed $ 686,098.00. This amount shall include all fees, costs and expenses incurred by Contractor, and no additional amounts shall be paid by the Town for such Page 1 of 7 FIRESTONE fees, costs, and expenses. Contractor may submit periodic invoices, which shall be paid by the Town within 30 days of receipt. IV. PROFESSIONAL RESPONSIBILITY A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. The work performed by Contractor shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations, including the preference for Colorado Labor set forth in C.R.S. Article 17 Title 8. B. The Town's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. C. Because the Town has hired Contractor for its professional expertise, Contractor agrees not to employ Sub -Contractor s to perform any work except as expressly set forth in the Scope of Services. V. OWNERSHIP A. Any materials, items, and work specified in the Scope of Services, and any and all related documentation and materials provided or developed by Contractor shall be exclusively owned by the Town. Contractor expressly acknowledges and agrees that all work performed under the Scope of Services constitutes a "work made for hire." To the extent, if at all, that it does not constitute a "work made for hire," Contractor hereby transfers, sells, and assigns to the Town all of its right, title, and interest in such work. The Town may, with respect to all or any portion of such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change such work without providing notice to or receiving consent from Contractor. B. If the Town reuses or makes any modification to Contractor's designs, documents or work product without the prior written authorization of Contractor , the Town agrees, to the fullest extent permitted by law, to release the Contractor, its officers, directors, employees and sub -Contractors from all claims and causes of action arising from such uses, and shall to the extent permitted by law indemnify and hold them harmless from all costs and expenses, including the cost of defense, related to claims and causes of action to the extent such costs and expenses arise from the Town's modification or reuse of the documents. C. The Town expressly acknowledges and agrees that the documents and data to be provided by Contractor under the Agreement may contain certain design details, features and concepts from the Contractor's own practice detail library, which collectively may form portions of the design for the Project, but which separately, are, and shall remain, the sole and exclusive property of Contractor. Nothing herein shall be construed as a limitation on the Contractor's right to re -use such component design details, features and concepts on other projects, in other contexts or for other clients. VI. INDEPENDENTCONTRACTOR Contractor is an independent Contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Contractor to perform work under the terms of this Agreement shall Page 2 of 7 be, and remain at all times, employees or agents of Contractor for all purposes. Contractor shall make no representation that it is a Town employee for any purposes. VII. INSURANCE A. Contractor agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this Agreement. At a minimum, the Contractor shall procure and maintain, and shall cause any Sub -Contractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1 Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, and employees, and Contractor as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $2,000,000 general aggregate. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, and its employees Contractor shall be excess and not contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any deductible losses under any policy. C. Contractor shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VIII. INDEMNIFICATION A. Contractor agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, recklessness or other fault of Contractor , any Sub -Contractor of Contractor , or any officer, employee, representative, or agent of Contractor , or which arise out of a worker's compensation claim of any employee of Contractor or of any employee of any Sub -Contractor of Contractor. Contractor 's liability under this indemnification provision shall be to the fullest extent of, but shall not exceed, that amount represented by the degree or percentage of negligence or fault attributable to Page 3 of 7 Contractor, any Sub -Contractor of Contractor, or any officer, employee, representative, or agent of Contractor or of any Sub -Contractor of Contractor . B. If Contractor is providing architectural, engineering, surveying or other design services under this Agreement, the extent of Contractor's obligation to indemnify and hold harmless the Town may be determined only after Contractor's liability or fault has been determined by adjudication, alternative dispute resolution or otherwise resolved by mutual Agreement between the Parties, as provided by C.R.S. § 13-50.5-102(8)(c). IX. CHANGE ORDERS A. Change Order is a written instrument issued after execution of the Agreement signed by Town and Contractor, stating their Agreement, as applicable, upon all of the following: 1. The scope of the change in the Work; 2. The amount of the adjustment to the Contract Price and 3. The extent of the adjustment to the Contract Times(s). B. All changes in the Work authorized by the applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Town and Contractor shall negotiate in good faith and as expeditiously as possible the appropriate adjustment of such changes. X. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligations of this Agreement. C. Integration. This Agreement constitutes the entire Agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing and shall be deemed sufficient when personally presented or sent pre -paid, first class United States Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification, This Agreement may only be modified upon written Agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and its officers, and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. Page 4 of 7 J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Representative Authority. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute the Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. ATTEST. Missy Carranco, Deputy Town Clerk • LRE WATER By: William Fronczak, P.E., Esq. Director, Risk Management Page 5 of 7 fiRESTONE EXHIBIT A SCOPE OF SERVICES Water Engineering Consulting Services Task No. Task Description Task Description General Services & Collaboration with Firestone staff and members of Program Mgmt. the consultant water team to develop', strategies and tactics and to manage and direct projects and initiatives related to water rights, water supply, water delivery and other water projects. Work with other parties and agencies as needed and directed. Create and evaluate water supply and management initiatives. Review and update as necessary strategies for delivery of C -BT, Windy Gap, NISP, & native water sources to Firestone. Develop strategies for reuse of supplies. Advise and consult on updates and amendments to intergovernmental agreements, as needed. Update underlyingdata and assumptions to the 2020 Water Action Plan. A comprehensive reevaluation of the Water Action Plan is presently under consideration and pending development. If directed, such a reevaluation would merit a detailed scope of work and a separate subtask from this General Services and Program Mgmt. subtask. 1 Case No. 23CW3009 Continued settlement negotiations, preparation of a (Firestone Reservoir No. 26(a)(2) disclosure, does NOT include trial 3) Support preparation - trial unlikely. 2 Water Court Opposition Continued settlement negotiations and comment Support responses in other applicant cases. Dependent upon level of involvement and applications that are published. 3 Water Quality Sampling Continued execution of modified (reduced analyte and Analysis number and sampling frequency) Water Quality Sampling and Analysis Plan including summary data analysis and archive of lab results for compliance and reporting 4 Water Rights Accounting Daily operation and maintenance of Firestone's and Administration water accounting, communication with Town engineers regarding operations. 5 Lower Boulder & Rural Case No. 24CW3062 preliminary engineering, Ditch Water Right Support response to opposer comments, settlement negotiations, 26a2 disclosure, 2025 SWSP, as well as acquisition support Page 6 of 7 FIRESTONE Task No. Task Description Task Description 6 New Coal Ridge Ditch Water court application support (Case No. TBD), Water Right Support preliminary engineering, response to opposer comments, settlement negotiations, 2025 SWSP, as well as acquisition support. Will be some refinement of ditch -wide in 2025 based on state input. 7 Last Chance Ditch Water Water court application support (Case No. TBD), Right Support preliminary engineering, 2025 SWSP, as well as acquisition support. Assumed some input from LCD in 2025 on ditch -wide analysis. 8 Godding Ditch Water Right Water court application support (Case No. TBD), Support preliminary engineering, 2025 SWSP, as well as acquisition support 9 Tier 2 Ditches Water Right Support to LC Water Law and WestWater in the Support identification and development of native supplies beyond those identified above. 10 Water Action Plan Update Comprehensive update and extension of the 2020 Water Action Plan through 2060. Page 7 of 7