Loading...
04-16-2012 Agreement The Morrison GroupTHIS AGREEMENT ( "Agreement ") is made on the date(s) set forth below by and between THE MORRISON GROUP, JL>LC ( "Company ") and the Town of Avon, Colorado, a Colorado home rule municipality, ( "Contracting Entity" or "Town ") (collectively referred to as "Parties "). WIN A. The Company is engaged in the business of providing: i) personnel recruiting and selection expertise, ii) retreat facilitation, iii) organizational assessments, and, iv) a wide variety of related services and expertise in professional governmental areas. B. The Contracting Entity is a municipality located in Avon, Colorado and has identified certain areas in which it could benefit from professional expertise. C. The Parties wish to enter into a contractual relationship by which Company will provide certain services to Contracting Entity in exchange for the compensation described below. NOW THEREFORE, in consideration of the mutual covenants contained herein, the receipt of which is hereby acknowledged, it is agreed: 1. Contracted Services to Be Provided. Company shall perform certain services (the "Company Services ") for Contracting Entity on an independent contractor basis. The Company Services shall be provided in a competent, effective and workmanlike manner. The Company Services are described in detail on the attached Exhibit A. 2. Independent Contractor Status. Company and Contracting Entity desire that the relationship between them created by this Agreement shall be that of an independent contractor relationship. Company and its employees shall not be deemed an employee or servant of Contracting Entity and no benefits of employment are available to Company and its employees. 3. Term. This Agreement shall commence on April 12, 2012, and shall terminate when the the Avon Town Council has successfully appointed and filled the Town Manager position and when the Town Council facilitation services are completed or on December 31, 2012, which ever date is earlier, unless extended in writing upon the consent of both Parties. Either party may terminate this Agreement at any time upon twenty (20) days' written notice. 4. Compensation. Contracting Entity will pay Company a fee for the Company Services and reimburse Company for certain expenses as described on the attached Exhibit B and made apart hereof. This fee schedule may be modified or amended in writing by the Parties as specifically set forth in paragraph 13 below. 5. Company Warranties. Company represents and warrants that the Company Services and the Materials do not and will not infringe upon, violate, or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party. 6. Notice Address. All notices in connection with this Agreement: (a) must be given in writing; and (b) will be deemed given as of (i) the day they are delivered on paper by a nationally recognized express delivery service (such as Federal Express or UPS), to the address set forth below; (ii) three (3) days after they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested, to the address set forth below; or (iii) sent via electronic mail and such receipt is acknowledged by the recipient in writing which acknowledgement may also be via electronic mail to the addresses below: Company: THE MORRISON GROUP, LLC P.O. Box 2464 (US Mail) 333 Ptarmigan Trail (physical address) Silverthorne, CO 804983 <,iregm (q)themorrison�roup.orb Contracting Entity: Town of Avon, Colorado P.O. Box 975 One Lake Street Avon, CO 81620 pmckenny<�?avon.org and eric asheillaw.coin Either party may change the address above by giving notice to the other party pursuant to this Section. 7. Confidentiality. All materials, notes, reports and data provided by Contracting Entity to Company that it would otherwise not be entitled to receive, (the "Confidential Information ") during the term of this Agreement, shall be held in confidence by Company. From and after the date this Agreement is entered into, Company shall not disclose or communicate Confidential Information to any unauthorized third party, and shall protect the Confidential Information with a reasonable degree of care, which shall be not less than the same degree of care Company uses to prevent the unauthorized use, dissemination or publication of its own most valuable confidential information. Confidential Information shall not include information which can be demonstrated to be: (i) generally known or available to the public, through no act or omission on the part of Company; (ii) known to Company prior to disclosure by Contracting Entity as evidenced by written records; or (iii) provided to Company by a third party without any restriction on disclosure and without breach of any obligation of confidentiality to any third parry. Notwithstanding the above, Company may disclose Confidential Information to third parties if necessary to provide Company Services, provided such third party is bound by a confidentiality provision similar to that found above. -2- S. Attorne s' Fees. Should litigation be required to interpret or enforce the terms of this Agreement each party shall be solely responsible for any attorney's fees and costs incurred by the respective party. 9. Survival. The Confidentiality covenants contained in this Agreement shall survive the termination of this Agreement. In addition, the termination of this Agreement shall not affect any of the rights or obligations of either party arising prior to, or at the time of, the termination of this Agreement, or which may arise by any event causing the termination of this Agreement. The Parties further understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. 10. Severability. If any provision or clause of this Agreement (including, but not limited to, the Confidentiality covenants contained herein) is held to be invalid by a court of competent jurisdiction, then such provision or clause shall be severed herefrom without affecting any other provision or clause of this Agreement, the balance of which shall remain in full force and effect; provided, however, that if such provision or clause may be modified so as to be valid as a matter of law, then the provision or clause shall be deemed to be modified so as to be enforceable to the maximum extent permitted by law. 11. Insurance a. Commercial General Liability /Automobile Liability Insurance: Company shall obtain and maintain Commercial General Liability insurance in the amount of One Million Dollars ($1,000,000) per occurrence. If a general aggregate limit is used, either the general aggregate limit shall apply separately to this contract or the general aggregate limit shall be twice the required occurrence limit. Company's insurance coverage shall be written on an occurrence basis. b. Workers' Compensation Insurance: Company has entered, or will be entering, into an agreement with Contracting Entity to provide goods or services. Company is familiar with the Workers' Compensation laws of Colorado, and Company maintains they are exempted under the law from the requirement to maintain Workers' Compensation insurance coverage. In addition, during the term of any work for the Contracting Entity under said agreement: (1) Company will not employ any person in any manner so as to become subject to the Workers' Compensation laws. 12. Miscellaneous Matters. This Agreement shall be binding upon the Parties, their heirs, legal representatives, successors, and assigns. There are no other understandings or agreements between them concerning the subj ect matter. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. This Agreement shall be construed in accordance with the laws of the State of Colorado. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. All notices or other documents under this Agreement shall be in writing and delivered personally or mailed by certified mail, return receipt requested, postage prepaid, addressed to either of us at our last known addresses. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. This Agreement sets forth the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements of the Parties whether oral or written. No provision of this Agreement may be modified, except by a written instrument duly signed and acknowledged by each of the Parties hereto. 13. No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 14. Affirmative Action: Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 15. Article X Section 20 /TABOR: The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. -4- 16. Employment of or Contracts with Illegal Aliens: Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Contractor shall not contract with a subcontractor that fails to certify that the subcontractor does not knowingly employ or contract with any illegal aliens. By entering into this Agreement, Contractor certifies as of the date of this Agreement it does not knowingly employ or contract with an illegal alien who will perform work under the public contract for services and that the contractor will participate in the e- verify program or department program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. The Contractor is prohibited from using either the e- verify program or the department program procedures to undertake pre - employment screening of j ob applicants while this Agreement is being performed. If the Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, the Contractor shall be required to notify the subcontractor and the Town within three (3) days that the Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien. The Contractor shall terminate the subcontract if the subcontractor does not stop employing or contracting with the illegal alien within three (3) days of receiving the notice regarding Contractor's actual knowledge. The Contractor shall not terminate the subcontract if, during such three days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. The Contractor is required to comply with any reasonable request made by the Department of Labor and Employment made in the course of an investigation undertaken to determine compliance with this provision and applicable state law. If the Contractor violates this provision, the Town may terminate this Agreement, and the Contractor may be liable for actual and /or consequential damages incurred by the Town, notwithstanding any limitation on such damages provided by such Agreement. 17. Ownership of Documents: Any work product, materials, and documents produced by the Contractor pursuant to this Agreement shall become property of the Town of Avon upon delivery and shall not be made subject to any copyright unless authorized by the Town. Other materials, methodology and proprietary work used or provided by the Contractor to the Town not specifically created and delivered pursuant to the Services outlined in this Agreement may be protected by a copyright held by the Contractor and the Contractor reserves all rights granted to it by any copyright. The Town shall not reproduce, sell, or otherwise snake copies of any copyrighted material, subject to the following exceptions: (1) for exclusive use internally by Town staff and /or employees; or (2) pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, C.R.S., to the extent that such statute applies; or (3) pursuant to law, regulation, or court order. The Contractor waives any right to prevent its name from being used in connection with the Services. 18. No Waiver of Rights: A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. The Town's approval or acceptance of, or payment for, services shall not be construed to operate as a waiver of any rights or benefits to be provided under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by the Town except in writing signed by the Town Council or by a person expressly authorized to sign such waiver by resolution of -5- the Town Council of the Town of Avon, and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. 19. Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns. 20. Limitation of Damages: The Parties agree that Contractor's remedies for any claims asserted against the Town shall be limited to proven direct damages in an amount to exceed amounts due under the Agreement and that Town shall not be liable for indirect, incidental, special or consequential damages, including but not limited to lost profits 21. No Third Party Beneficiaries: Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub - consultant or sub - contractor of Contractor. Absolutely no third party beneficiaries are intended by this Agreement. Any third -parry receiving a benefit from this Agreement is an incidental and unintended beneficiary only. 22. Governing Law, Venue, and Enforcement: This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. 23. Assignment and Release: All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Contractor without the express written consent of the Town Council for the Town of Avon. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council for the Town of Avon. No assignment shall release the Applicant from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 24. Severability: Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this Agreement. ''1•'� I":i Company Services Pursuant to the terms of the Independent Contractor Agreement between the parties dated L2 / L 1-,2, , 2012, the Company agrees to provide the following services: 1) Conduct one -on -one interviews with all Town Council members to gain background information for the facilitation of a Town Council Retreat and the recruitment and selection process for a new Town Manager 2) Facilitate a one day Town Council Retreat based upon the information gained in the one -on -one interviews, focusing both on best leadership practices for the Council and the recruitment of a new Town Manager. 3) Conduct two focus groups with Town Staff or community groups, as directed by Council, to receive input on the Town Manager selection process. 4) Initiate a national recruiting campaign for a new Town Manager including: 1) placing advertisements on national professional employment websites and with national and state professional management organizations; 2) working with Town staff to prepare a digital recruiting brochure; 3) selective electronic distribution of the recruiting brochure to municipal management executives nation -wide from like municipalities; and 4) selective recruiting of qualified individuals known to the Company. 5) Receive and maintain all resumes from applicants. Conduct all communications with applicants and potential applicants. 6) Maintain communication with the Mayor and Town Council on the recruitment process on an as needed basis. 7) Vet resumes and present a "long list" of the most highly qualified applicants to Council in an executive session. Assist the Council selecting finalists to be invited for on -site interviews. 8) Designing and facilitating the on -site interview process based upon direction from Town Council. 9) Company shall facilitate a second round interview process if a final candidate is not hired from the first round of interviews. 10) If requested by Council, participate in one on -site visit to the current employer of an identified finalist. TMG will conduct an on -site background investigation of the candidate including interviewing supervisors, peers and subordinates and reviewing personnel files. Reasonable travel expenses (airfare, hotel, meals, mileage) shall be reimbursed by the Contracting Entity to the Company. C:\ USERS\ PMCKENNY \APPDATA\LOCAL\MICROSOFT \WINDOWS \TEMPCRIRY rNTERNET FILES\ CONTENT .OUTLOOK\LI673Y8G\MORRISON GROUP -AVON CONTRACT 12 -04 -13 EJH.DOC W4,511,111OP Fee Schedule A. The Company's fee for the Company Services will be as follows: Facilitation of the Town Council Retreat $1,500 2. Recruitment and selection process for Town Manager $9,500 3. Total consulting services $11,000 B. 1. Reasonable travel expenses (airfare, hotel, meals, mileage) for on -site visit. C. Fee Schedule: Company shall invoice Contracting Entity in three phases 1. $2,000 due upon completion of the Council Retreat. 2. $4,000 due upon the selection of the finalists by Council in executive session 3. $5,000 due upon the successful hiring of a new manager. C: \USERS\PMCKENNY\APPDATA \LOCAL \MICROSOFT \WINDOWS \TEMPCR,�ZY INTERNET FILES\ CONTENT .OUTLOOK\LI673YSG \MORRISON GROUP -AVON CONTRACT 12 -04 -13 EJH.DOC Dated:— �/- 1 11� Dated: q� I L" I 0 5 EA 0 RAN GregoV. Morrison, President Contracting Entity: The Town of Avon, Colorado By: Rich Carroll, Mayor Attest: 3 TnZ- � �Pa M Kenny,� n 1 k !VA EXHIBIT 3 Lessee's Certificate Re: Property Schedule No. 02 to Master Tax - Exempt Lease /Purchase Agreement U.S. Bancorp Government Leasing and Finance, Inc. and Town of Avon. The undersigned, being the duly elected, qualified and acting ( "Lessee ") do hereby certify, as of March 15, 2012, as follows: the Town of Avon 1. Lessee did, at a meeting of the governing body of the Lessee held (date) by resolution or ordinance duly enacted, in accordance with all requirements of law, approve and authorize the execution and delivery of the above - referenced Property Schedule (the 'Property Schedule ") and the Master Tax - Exempt Lease /Purchase Agreement (the "Master Agreement ") by the following named representative of Lessee, to wit: NAME OF EXECUTING OFFICIAL TITLE OF EXECUTING OFFICIAL SIGNATURE OF EXECUTING OFFICIAL CI�A4 Caiecr( '►i And/ Or /O (� 2. The above -named representative of the Lessee held at the time of such authorization and holds at the present time the office set forth above. 3. The meeting(s) of the governing body of the Lessee at which the Master Agreement and the Property Schedule were approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, and the enactment approving the Master Agreement and the Property Schedule and authorizing the execution thereof has not been altered or rescinded. All meetings of the governing body of Lessee relating to the authorization and delivery of Master Agreement and the Property Schedule have been: (a) held within the geographic boundaries of the Lessee; (b) open to the public, allowing all people to attend; (c) conducted in accordance with internal procedures of the governing body; and (d) conducted in accordance with the charter of the Lessee, if any, and the laws of the State. 4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default or a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof with respect to this Property Schedule or any other Property Schedules under the Master Agreement. 5. The acquisition of all of the Property under the Property Schedule has been duly authorized by the governing body of Lessee. 6. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the Lease Payments scheduled to come due during the current budget year under the Property Schedule and to meet its other obligations for the current budget year and such funds have not been expended for other purposes. 7. As of the date hereof, no litigation is pending, (or, to my knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoy in the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement and the Property Schedule. Town of Avon By: a.LL Title:` /O (� SIGNER MUST NOT I/BE'THE E AS THE EXECU ING OFFICIALS SHOWN ABOVE. Lessee's Certificate Re: Property Schedule No. 02 to Master Tax - Exempt Lease /Purchase Agreement U.S. Bancorp Government Leasing and Finance, Inc. and Town of Avon. The undersigned, being the duly elected, qualified and acting l i� d-4'10-1 9— the Town of Avon ("Lessee") do hereby certify, as of March 15, 2012, as follows: 1. Lessee did, at a meeting of the governing body of the Lessee held (date) by resolution or ordinance duly enacted, in accordance with all requirements of law, approve and authorize the execution and delivery of the above - referenced Property Schedule (the "Property Schedule ") and the Master Tax - Exempt Lease /Purchase Agreement (the "Master Agreement') by the following named representative of Lessee, to wit: NAME OF EXECUTING OFFICIAL TITLE OF EXECUTING OFFICIAL SIGNATURE OF EXECUTING OFFICIAL Ct_ 0 SIGNER MUST NOT BE THE SAME AS THE EXECUTING OFFICIALS SHOWN ABOVE. A Or 2. The above -named representative of the Lessee held at the time of such authorization and holds at the present time the office set forth above. 3. The meeting(s) of the governing body of the Lessee at which the Master Agreement and the Property Schedule were approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, and the enactment approving the Master Agreement and the Property Schedule and authorizing the execution thereof has not been altered or rescinded. All meetings of the governing body of Lessee relating to the authorization and delivery of Master Agreement and the Property Schedule have been: (a) held within the geographic boundaries of the Lessee; (b) open to the public, allowing all people to attend; (c) conducted in accordance with internal procedures of the governing body; and (d) conducted in accordance with the charter of the Lessee, if any, and the laws of the State. 4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default or a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof with respect to this Property Schedule or any other Property Schedules under the Master Agreement. 5. The acquisition of all of the Property under the Property Schedule has been duly authorized by the governing body of Lessee. 6. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the Lease Payments scheduled to come due during the current budget year under the Property Schedule and to meet its other obligations for the current budget year and such funds have not been expended for other purposes. 7. As of the date hereof, no litigation is pending, (or, to my knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoy in the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement and the Property Schedule. Town of Avon By: - Title: Ct_ 0 SIGNER MUST NOT BE THE SAME AS THE EXECUTING OFFICIALS SHOWN ABOVE.