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HomeMy WebLinkAboutCH2M HILL LOHF HAIMAN JACOBS HYMAN FEIGER PC - CONTRACT - CONTRACT - AMENDMENT NINE TO CONTRACTAGREEMENT For Professional Services T, THIS AGREEMENT ("Agreement") is made and entered into this �-� day of January, 200X by and between the CITIES OF LOVELAND AND FORT COLLINS, COLORADO, to home rule municipalities ("Cities"), and LOHF SHAIMAN JACOBS HYMAN & FEIGER PC ("Consultant"). WHEREAS, Cities are undertaking a project to/known as legal services for review of Airport Rules and Regulations and Airport Minimum Standards, preparation of an Ordinance related to the Fort Collins/Loveland Municipal Airport and other legal services as needed and as described on the Exhibit A, Scope of Services. ("Project"); and WHEREAS, Cities desire to retain the services of Consultant to complete the Project as set forth in this Agreement; and WHEREAS, Consultant desires to provide those services to Cities. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: 1. Services. Cities agree to retain Consultant to provide the services set forth in Exhibit A, attached hereto and incorporated herein by reference ("Services"), and Consultant agrees to so serve. Consultant warrants and represents that it has the requisite authority, capacities, experience, and expertise to perform the Services in compliance with the provisions of this Agreement and all applicable laws and agrees to perform the Services on the terms and conditions set forth herein. Cities reserve the right to omit any of the Services identified in Exhibit A upon written notice to Consultant. 2. Compensation. Cities agree to pay Consultant a sum not to exceed Seven Thousand Eight Hundred Dollars ($7,800.00), as adjusted to reflect the omission by Cities of any of the Services set forth in Exhibit A. Cities shall make payment upon receipt and approval of invoices submitted by Consultant, which invoices shall be submitted to Cities not more frequently than monthly and which shall identify the specific Services performed for which payment is requested. 3. Term. The Term of this Agreement shall be from the date first written above until April 31, 2006, unless extended by written agreement of the parties. 4. Appropriation. The parties agree and acknowledge that this Agreement does not constitute a multiple fiscal year debt or financial obligation of Cities based on City's ability to terminate this Agreement pursuant to "Termination," below. Consultant acknowledges that Cities have made no promise to continue to budget funds beyond the current fiscal year and that Cities have and will pledge adequate cash reserves on a fiscal year -by -fiscal year basis. LOHF SHAIMAN JACOBS HYMAN & FEIGER PC ENGAGEMENT AND FEE STANDARDS LOHF SHAIMAN JACOBS HYMAN & FEIGER PC (the "Firm"), whose address is 950 South Cherry Street, Suite 900, Denver, Colorado 80246, sets forth its ENGAGEMENT AND FEE STANDARDS as follows. FEES. When time is used as a criterion, the following hourly rates, depending upon experience and expertise and as modified from time to time, will apply: Principal Attorney $175.00 to $350.00 per hour Associate Attorney $135.00 to $200.00 per hour Legal Assistant $ 60.00 to $100.00 per hour Time will be recorded in fractions of an hour. Tasks for which time will be recorded include, but are not limited to, the following: conferences with the Client and others, legal research, factual investigation, preparation of correspondence and legal documents, reading and analyzing correspondence and legal documents, file review and maintenance, preparation for and appearance in court and other meetings, travel to and from court and other meetings, and telephone conversations, voice messages, and other communications with the Client, counsel and others. In furnishing services, our policy is to assign the appropriate person to the task so that the best representation is afforded on an economic basis. When justified by the circumstances, we will assign more than one attorney to participate in a matter. We will evaluate the propriety of billing full rates for more than one attorney assigned to a task on a case by case basis. Services rendered by the Firm for the Client prior to the signing of the Contract for Legal Services will be included in the Firm's fee. The Firm reserves the right not to bill for certain tasks or to write down all or part of its time. 2. EXPENSES (COSTS) ADVANCED. The Firm may incur various expenses in providing services to the Client. Some examples of these expenses are charges for court filings, depositions, expert witnesses, investigations, reports, Secretary of State filings, photocopying, computerized legal research and other data base searches, long distance telephone, facsimiles, courier services, postage and the like. The Client shall promptly reimburse the Firm for all expenses paid by the Firm. The Client will be notified of these expenses by monthly billing. In some instances, the third -party service provider will bill these expenses directly to the Client, in which case the Client shall make direct and prompt payment to the third -party service provider. 3. BILLING; INTEREST ON UNPAID AMOUNTS. The Firm will submit to the Client monthly statements for services rendered and expenses incurred during the previous month. Payment for all statements is due upon the Client's receipt of the statement. The Firm reserves the right to charge a monthly finance charge of 1-1/2 % from the date due for any amounts billed that have not been paid after 30 days. 4. RETAINER. The Client will pay the Firm a retainer if specified in the Contract. The retainer will be used as an advance against attorneys' fees and expenses unless otherwise agreed in the Contract. The Firm will hold the retainer for future withdrawal. If the sum held as a retainer is sufficient to pay the statement submitted, the Firm will apply the amount necessary to pay the bill. Any balance remaining in the retainer fund upon the termination of the Firm's representation will be refunded to the Client. TERMINATION OF EMPLOYMENT; WITHDRAWAL. The Client may terminate the Contract by notifying the Firm in writing. If permission for withdrawal from services or representation is required by the rules of any court, the Firm will withdraw upon permission of the court. In the event that the court does not permit withdrawal of the Firm, Client will remain responsible for all fees and expenses, including those incurred following the attempt to withdraw. The Client will pay the Firm its fees for services rendered and its expenses incurred to the date of such Firm's receipt of the Client's letter of termination. Such fees and costs will be due and payable on the date of termination or by order of court allowing for withdrawal, whichever is later. The Firm may withdraw as counsel for the Client and terminate the Contract for any just reason by notifying the Client in writing. Some examples of reasons for termination include, but are not limited to, investigation by the Firm which reveals that there is no factual basis for the Client's position in the matter which is the subject of the engagement, the Client's failure to pay the Firm's fee or expenses within a reasonable time of the Client's receipt of any bill, the Client's failure to cooperate with the Firm, and any action or request by the Client which would require the Firm to violate the Colorado Rules of Professional Conduct adopted by the Supreme Court of Colorado. If the Firm withdraws as the Client's counsel and terminates the Contract, it will take reasonable precautions to avoid prejudice to the rights of the Client by allowing a reasonable time for employment of other counsel, delivering to the Client all papers and property to which the client is entitled upon payment of all fees and expenses, and complying with all applicable laws and rules. 6. FILE RETENTION. The Firm will retain files relating to a Client legal matter for a period of seven years after the legal matter has been resolved or after the last work on the legal matter has been performed by the Firm, whichever occurs first (the "File Disposal Date"). If the Client desires to obtain the file, rather than having the Firm dispose of it, the Client must request the file from the Firm, in writing, no later than the File Disposal Date. If the Firm does not receive such a timely written request, the Firm may dispose of the file, on or after the File Disposal Date, without further notice to the Client. Notwithstanding the foregoing, the Firm, in its sole discretion, may dispose of draft documents and internal work papers generated in connection with a Client legal matter prior to the File Disposal Date. Fee Standards 1/04 ACQRo_ CERTIFICATE OF LIABILITY INSURANCE OP ID H DATE(MMICD/YYYY) LOHFS-1 01 09 06 PRODUCER THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION Cherry Creek Ins. Agency, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE suite 500 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 5660 Greenwood Plaza Blvd. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Greenwood village CO 80111 Phone:303-799-0110 Fax:303-799-0156 ;INSURERS AFFORDING COVERAGE NAICM INSURED INSURER& n�. wrUota Lnaura�w. aroUP 22357 INSURER B Lohf Shaiman JacobsHyman etal Ms Anita Culll INSURER C: 950 S Cherry 91900 Denver CO BD246 1NSUR£R D1 - — 1- INSURER E. COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INOICATED. NOTVRTHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PFRTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN B SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, LTA NBRC TYPE OF INSURANCE POLICY NUMBER DATE MMIDDM/ DATEI'MOOMH LIMITS LIABILITY EACHOCCURRENCE $1000000 A -GEERAL X ]C COMMERCIAL GENERALLOIBILCY 34SBAGDO835 02/01/06 02/01,07 PREMISEB(EamwLovl 3500000 CLAIMS MADE O OCCUR MED EXP fAm one palsa111 510000 PERSONAL 3 ADV INJURY $1.000000 GENERAL AGGREGATE ,52000000 I GEITLAGGREGATE LMIITAPPLESPER' PRODUCTS-COMROPAGGl32000000 -. POLICY F7 jEo- 7-1 LOG AUTOMOBILE LIABILITY !I ANY AUTO COMBINED SINGLE LIMIT IEa awKWO 1 1000000 BODILY INJURY (Per Parson) 3 ALL OWNED AUTOS j SCHEDULED AUTOS A X X HIREO AUTOS 34SBA=0835 NON -OWNED AUTOS 02/01/06 02/01/07 BODILY INJURY (P.aoadvj 3 _ PROPERTY DAMAGE (Pwa Wmt) 3 GARAGE LABILITY AUTO ONLY -EA ACCIDENT 3 3 ANY AUTO OTHER THAN EA ACC AUTO ONLY: AGG 3 EXCESWUMBRELLA LIABILITY EACHOCCURRENCE 31000000 A x :OCCUR �CLAWSMADE 34SBAGD0935 02/01/06 02YO1107 AGGREGATE $1000000 I Is DEDUCTIBLE 3 X RETENTION 310000 A WORKERS COMPENSATION AND EMPLOYERS'LIABILITY. ANY PROPRIETORPARTNERJEXECUTNE OFFICERIMEMBER EXCLUDED? 34WECF03566 02/01/05 02/01/06 TORY UNITS ER __.. E.L.EACHACCIDFNT . s100000 E.L. DISEASE - EA EMPLOYEE $ 100000 If "I. doa>IIR Unaer SPECIAL PROVISIONS IMae El DISEASE-POLICYLIMIT I50A000 OTHER I DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Certificate Holder is added as an 76dd4 tional Insured w(respects to General Liability. Coverage is primary and non-contributory. Cities of Loveland and Ft Collins David Gordon 4900 Earhart Rd Loveland CO 80537 ACORD L.AVNL.CLLA I I V ry SHOULD ANY OF THE ABOVE DESCRIBED POLICIES Be CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IN POSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE An 1'Isl/a rnn 5. Monitoring and Evaluation. Cities reserve the right to monitor and evaluate the progress and performance of Consultant to ensure that the terms of this Agreement are being satisfactorily met in accordance with City's and other applicable monitoring and evaluating criteria and standards. Consultant shall cooperate with Cities relating to such monitoring and evaluation. 6. Cities Property. Reports, surveys, maps, plans, drawings, photographs, and any other tangible materials produced by Consultant pursuant to this Agreement shall at all times be considered City's property. 7. Independent Contractor. The parties agree that Consultant shall be an independent contractor and shall not be an employee, agent, or servant of Cities. Consultant is not entitled to workers' compensation benefits from Cities and is obligated to pay federal and state income tax on any money earned pursuant to this Agreement. 8. Insurance Requirements. a. Comprehensive General Liability Insurance. Consultant shall procure and keep in force during the duration of this Agreement a policy of comprehensive general liability insurance insuring Consultant and naming Cities as an additional insured against any liability for personal injury, bodily injury, or death arising out of the performance of the Services with at least One Million Dollars ($1,000,000) each occurrence. The limits of said insurance shall not, however, limit the liability of Consultant hereunder. b. Comprehensive Automobile Liability Insurance. Consultant shall procure and keep in force during the duration of this Agreement a policy of comprehensive automobile liability insurance insuring Consultant and naming Cities as an additional insured against any liability for personal injury, bodily injury, or death arising out of the use of motor vehicles and covering operations on or off the site of all motor vehicles controlled by Consultant which are used in connection with the Project, whether the motor vehicles are owned, non -owned, or hired, with a combined single limit of at least One Million Dollars ($1,000,000). The limits of said insurance shall not, however, limit the liability of Consultant hereunder. C. Professional Liability Insurance. If Consultant is an architect, engineer, surveyor, appraiser, physician, attorney, accountant, or other licensed professional, or if it is customary in the trade or business in which Consultant is engaged to carry professional liability insurance, or if the Cities otherwise deems it necessary, Consultant shall procure and keep in force during the duration of this Agreement a policy of errors and omissions professional liability insurance insuring Consultant against any professional liability with a limit of at least One Million Dollars ($1,000,000) per claim and annual aggregate. The limits of said insurance shall not, however, limit the liability of Consultant hereunder. 2 d. Terms of Insurance. (i) Insurance required by this Agreement shall be with companies qualified to do business in the State of Colorado with a general policyholder's financial rating of not less than A+3A as set forth in the most current edition of "Best's Insurance Reports" and may provide for deductible amounts as Consultant deems reasonable for the Services, but in no event greater than Twenty Thousand Dollars ($20,000.00). No such policies shall be cancelable or subject to reduction in coverage limits or other modification except after thirty (30) days prior written notice to Cities. Consultant shall identify whether the type of coverage is "occurrence" or "claims made." If the type of coverage is "claims made," which at renewal Consultant changes to "occurrence," Consultant shall carry a six (6)- month tail. Consultant shall not do or permit to be done anything that shall invalidate the policies. (ii) The policies described in subparagraphs a. and b. above shall be for the mutual and joint benefit and protection of Consultant and Cities. Such policies shall provide that Cities, although named as an additional insured, shall nevertheless be entitled to recovery under said policies for any loss occasioned to it, its officers, employees, and agents by reason of negligence of Consultant, its officers, employees, agents, subcontractors, or business invitees. Such policies shall be written as primary policies not contributing to and not in excess of coverage Cities may carry. e. Worker's Compensation and Other Insurance. During the term of this Agreement, Consultant shall procure and keep -in force workers' compensation insurance and all other insurance required by any applicable law. If under Colorado law Consultant is not required to carry workers' compensation insurance, Consultant shall provide Cities an executed Certificate of Exemption From Statutory Workers' Compensation Law and Acknowledgement of Risk/Hold Harmless Agreement, which shall be attached hereto as Exhibit B and incorporated herein by reference. f. Evidence of Coverage. Before commencing work under this Agreement, Consultant shall furnish to Cities certificates of insurance policies evidencing insurance coverage required by this Agreement. Consultant understands and agrees that Cities shall not be obligated under this Agreement until Consultant furnishes such certificates of insurance. g. Subcontracts. Consultant agrees to include the insurance requirements set forth in this Agreement in all subcontracts. Cities shall hold Consultant responsible in the event any subcontractor fails to have insurance meeting the requirements set forth in this Agreement. Cities reserve the right to approve variations in the insurance requirements applicable to subcontractors upon joint written request of subcontractor and Consultant if, in City's opinion, such variations do not substantially affect City's interests. 3 9. Indemnification. Consultant hereby covenants and agrees to indemnify, save, and hold harmless Cities, its officers, employees, and agents from any and all liability, loss, costs, charges, obligations, expenses, attorney's fees, litigation, judgments, damages, claims, and demands of any kind whatsoever arising from or out of any breach of contract or negligent act or omission or other tortious conduct of Consultant, its officers, employees, or agents in the performance or nonperformance of its obligations under this Agreement. 10. Termination. a. Generally. Cities may terminate this Agreement without cause if it determines that such termination is in City's best interest. Cities shall effect such termination by giving written notice of termination to Consultant, specifying the effective date of termination, at least fourteen (14) calendar days prior to the effective date of termination. In the event of such termination by Cities, Cities shall be liable to pay Consultant for Services performed as of the effective date of termination, but shall not be liable to Consultant for anticipated profits. Consultant shall not perform any additional Services following receipt of the notice of termination unless otherwise instructed in writing by Cities. b. For Cause. If, through any cause, Consultant fails to fulfill its obligations under this Agreement in a timely and proper manner, violates any provision of this Agreement, or violates any applicable law, Cities shall have the right to terminate this Agreement for cause immediately upon written notice of termination to Consultant. In the event of such termination by Cities, Cities shall be liable to pay Consultant for Services performed as of the effective date of termination, but shall not be liable to Consultant for anticipated profits. Consultant shall not perform any additional Services following receipt of the notice of termination. Notwithstanding the above, Consultant shall not be relieved of liability to Cities for any damages sustained by Cities by virtue of any breach of this Agreement, and Cities may withhold payment to Consultant for the purposes of setoff until such time as the exact amount of damages due to Cities from Consultant is determined. 11. Governmental Immunity Act. No term or condition of this Agreement 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, C.R.S. §§ 24-10-101 et seq. 12. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and venue shall be in the County of Larimer, State of Colorado. 13. Assignability. Consultant shall not assign this Agreement without City's prior written consent. 14. Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors, and assigns. .19 15. Survival Clause. The "Indemnification" provision set forth in this Agreement shall survive the completion of the Services and the satisfaction, expiration, or termination of this Agreement. 16. Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and, except as provided herein, may not be modified or amended except by written agreement of the parties. 17. Severability. In the event a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable. such holding shall not invalidate or render unenforceable any other provision of this Agreement. 18. Headings. Paragraph headings used in this Agreement are for convenience of reference and shall in no way control or affect the meaning or interpretation of any provision of this Agreement. 19. Notices. Written notices required under this . Agreement and all other correspondence between the parties shall be directed to the following and shall be deemed received when hand -delivered or three (3) days after being sent by certified mail, return receipt requested: If to Cities: Name: David Gordon Title: Airport Manager Address: 4900 Earhart Road Loveland, CO 80537 If to Consultant: Name: J. Michael Morgan Title: Attorney/Shareholder LOHF SHAIMAN JACOBS HYMAN & FEIGER PC Address: 950 South Cherry Street, Suite 900 Denver, Colorado 80246-2666 20. Time of the Essence. Consultant acknowledges that time is of the essence of this Agreement. Consultant's failure to complete any of the Services contemplated herein during the Term of this Agreement, or as may be more specifically set forth in Exhibit A, shall be deemed a breach of this Agreement. 5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. CITY OF LOVELAND, COLORADO By: Title: C;t� ATTE Dewy Gty Jerk APPROVED AS TO FORM: r 4 iu City Attomey/*�*�. CITY OF FORT OLLINS, ri DO By: �- Title: r` P �i TTEST: City Clerk O APPR ED AS TO RM: City Attorne , CONSULTANT: LOHF SHAIMAN JACOBS HYMAN & FEIGER PC i By: / ,:Jane M. Harm, Secretary STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing Agreement was acknowledged before me this 6th day of January, 2006 by Jane M. Harm, as Secretary of the corporation. Witness my hand and official seal. My commission expires C OSHARO Notary Public %/ EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT LOHF SHAIMAN JACOBS HYMAN & FEIGER PC ATTORNEYS AT LAW 900 CHERRY TOWER 950 SOUTH CHERRY STREET DENVER, COLORADO 80246-2666 FACSIMILE 303.753.9997 TELEPHONE 303.753.9000 www.lohfshaiman.com J. MICHAEL MORGAN, EXT. 227 mmor2 nn(G)lohfshaiman.com ALSO ADMITTED IN WYOMING January 6, 2006 VIA FACSIMILE. (970) 962-2855 AND FIRST CLASS MAIL David Gordon, Airport Director Fort Collins/Loveland Airport 4900 Earhart Road Loveland, Colorado 80538 Re: Proposed Scope of Work for Legal Services Our File No: 5204.00 Dear Dave: Thank you for requesting a proposal for legal services regarding drafting and review of the Fort Collins/Loveland Airport's ordinances, rules and regulations, and minimum standards. We generally work on an hourly basis, and my hourly rate for airports is $195/hour. A copy of our firm's standard fee standards is enclosed. The actual hours worked will depend to some degree on the level of review desired by the Airport, what I find in the existing drafts, and the level of back -and -forth discussion and re -writing that is encountered. With this in mind, my good faith time estimate, and the order and estimated delivery times from date of signing the agreement, are as follows: 1. Report, discussions and conference call regarding licenses vs. contract issues: 3.5-5 hours; 2 business days. 2. Ordinance drafting: 3-5 hours; 4 business days. (Note: The scope of the Ordinance vs, the scope of the Rules and Regulations will be determined in the drafting process. As a default, we should limit the Ordinance to only those foundational matters which must be David Gordon, Airport Director Fort Collins/Loveland Airport Re: Proposed Scope of Work for Legal Services January 6, 2006 Page 2 accomplished through Ordinance, leaving all other matters for inclusion in the more flexible Rules and Regulations.) 3. Review and amend draft Rules and Regulations: 6-11 hours: 10 business days. 4. Review and amend draft Minimum Standards: 6-11 hours: 13 business days. 5. Prepare draft of agreement or license form for Airport use: 3 hours; 17 business days. 6. Additional discussion on related matters and other Airport legal matters which may arise: 3 hours; as and if necessary. At the appropriate time, and probably sooner rather than later, I would like to make a trip to the Airport on my own time at my own expense to actually view the physical facilities and discuss your current problems and future plans. Other than this half -day trip, the above estimate assumes no on -site visits, attendance at Council meetings or major re -writes of the rules or standards. My brief review of these documents indicate that major re -writing will probably not be necessary. Unless instructed in writing by the Airport, the high -end of the time range set forth above will be a "not to exceed" number of hours which is 40 hours. At a rate of $195 per hour, this equals a not to exceed amount of $7,800. 1 will do my best to efficiently draft, review and/or provide suggestions regarding the documents within the time limit established. Since my initial proposal on December 18, 2005, my start dates have slipped, and accordingly my estimated delivery dates have also slipped a bit and are now expressed in business days from agreement signing. If you have a sooner time deadline, please let me know and I will advise as to whether I can re -arrange things to meet your schedule. I understand that you will be proposing a form of Professional Services Agreement for my signature, to which a copy of this proposal will be attached. Very truly yours, LOHF SHAIM, N­JACOBS HYMAN & FEIGER PC J.;Michael organ JMM`tlh / Enclosure