HomeMy WebLinkAboutANDREWS BIRT - CONTRACT - RFP - P998 MARKETING SERVICES MPOPROFESSIONAL OVORK ORDER) SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 7th day of November. 2005, by
and between THE NORTH FRONT RANGE TRANSPORTATION AND AIR QUALITY
PLANNING COUNCIL (the "MPO") and Andrews Birt. Incomorated dba AB Advertising,
("Professional").
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
1. ScoAe of Services. Professional shall perform marketing services and related work as
needed. The scope of services to be performed pursuant to this Agreement shall be performed in
accordance with the Work Schedule stated on each Work Order, a sample of which is attached
hereto as Exhibit A and incorporated herein by this reference. The MPO reserves the right to
independently bid any project rather than issuing a Work Order to the Professional for the same pursuant
to this Agreement.
2. Time. The services to be performed pursuant to this Agreement shall be initiated
as specified on each Work Order. Time is of the essence. Any extensions of any time limit must
be agreed upon in writing by the parties hereto.
3. Term. This Agreement shall commence on November 4, 2005, and shall continue
in full force and effect until September 30, 2006, unless terminated sooner as herein provided. In
addition, at the option of the MPO, the Agreement may be extended for additional one year
periods not to exceed four (4) additional one year periods. Renewals and pricing changes shall be
negotiated by and agreed to by both parties. The Denver -Boulder -Greeley CPI-U published by the
Colorado State Planning and Budget Office will be used as a guide. Written notice of renewal shall be
provided to the Professional and mailed no later than ninety (90) days prior to contract end.
4. Default. Each and every term and condition hereof shall be deemed to be a
material element of this Agreement. In the event either party should fail or refuse to perform
according to the terms of this agreement, such party may be declared in default, and this
Agreement may be terminated.
5. Early Termination by MPO. Notwithstanding the time periods contained herein,
the MPO may terminate this Agreement at any time for the MPO's convenience or because of the
failure of Professional to fulfill the contract obligations. The MPO shall terminate by providing
at least fifteen (15) days prior written notice of termination by delivering to Professional a notice
of termination specifying the nature, extent, and effective date of the termination. Upon receipt
of the notice, Professional shall immediately discontinue all services affected (unless the notice
directs otherwise) and deliver to the MPO all data, drawings, specifications, reports, estimates,
summaries, and other information and materials accumulated in performing this contract,
whether completed or in process. If the termination is for convenience, the MPO shall make an
equitable adjustment in the contract price but shall allow no anticipated profit on unperformed
services. If the termination is for failure of Professional to fulfill the contract obligations, the
MPO may complete the work and Professional shall be liable for any additional cost incurred by
the MPO. If, after termination for failure to fulfill contract obligations, it is determined that
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E3=IT C - Federal Patent and Rights in Data
37 C.F.R. Part 401,49 C.F.R. Parts 18 and 19
The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19, Appendix
A, § 5, but the rights in data clause reflect FTA objectives. For patent rights, FTA is
governed by Federal law and regulation. For data rights, the text on copyrights is
insufficient to meet FTA's purposes for awarding research grants. This model clause,
with larger rights, as a standard, is proposed with the understanding that this standard
could be modified to FTA's needs.
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR
RESEARCH WORK.
A. Rights in Data.
(1) The term "subject data" means recorded information, whether or not copyrighted,
that is delivered or specified to be delivered under this Agreement. The term includes
graphic or pictorial delineation in media such as drawings or photographs; text in
specifications or related performance or design -type documents; machine forms such as
punched cards, magnetic tape, or computer memory printouts; and information retained
in computer memory. Examples include, but are not limited to: computer software,
engineering drawings and associated lists, specifications, standards, process sheets,
manuals, technical reports, catalog item identifications, and related information. The
term "subject data" does not include financial reports, cost analyses, and similar
information incidental to contract administration-
(2) The following restrictions apply to all subject data first produced in the
performance of the contract to which this Attachment has been added:
(a) Except for its own internal use, Professional may not publish or reproduce subject
data in whole or in part, or in any manner or form, nor may Professional authorize others
to do so, without the written consent of the Federal Government, until such time as the
Federal Government may have either released or approved the release of such data to the
public; this restriction on publication, however, does not apply to any contract with an
academic institution.
(b) In accordance with 49 C.F.R. 18.34 and 49 C.F.R. 19.36, the Federal Government
reserves a royalty -free, non-exclusive and irrevocable license to reproduce, publish, or
otherwise use, and to authorize others to use, for "Federal Government purposes," any
subject data or copyright described in subsections (2)(b)l and (2)(b)2 below. As used in
the previous sentence, "for Federal Government purposes," means use only for the direct
purposes of the Federal Government. Without the copyright owner's consent, the Federal
Government may not extend its Federal license to any other party.
1. Any subject data developed under this Agreement, whether or not a copyright has
been obtained; and
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2. Any rights of copyright purchased by Professional using Federal assistance in
whole or in part provided by FTA.
(c) When FTA awards Federal assistance for experimental, developmental, or
research work, it is FTA's general intention to increase transportation knowledge
available to the public, rather than to restrict the benefits resulting from the work to
participants in that work. Therefore, unless FTA determines otherwise, Professional
performing experimental, developmental, or research work required by this Agreement
agrees to permit FTA to make available to the public, either FTA's license in the
copyright to any subject data developed in the course of that contract, or a copy of the
subject data first produced under the contract for which a copyright has not been
obtained. If the experimental, developmental, or research work, which is the subject of
the underlying contract, is not completed for any reason whatsoever, all data developed
under that contract shall become subject data as defined in subsection (a) of this clause
and shall be delivered as the Federal Government may direct. This subsection (c),
however, does not apply to adaptations of automatic data processing equipment or
programs for Professional's use whose costs are financed in whole or in part with Federal
assistance provided by FTA for transportation capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the
MPO and Professional agree to indemnify, save, and hold harmless the Federal
Government, its officers, agents, and employees acting within the scope of their official
duties against any liability, including costs and expenses, resulting from any willful or
intentional violation by the MPO or Professional of proprietary rights, copyrights, or right
of privacy, arising out of the publication, translation, reproduction, delivery, use, or
disposition of any data fiunished under that contract. Neither the MPO nor Professional
shall be required to indemnify the Federal Government for any such liability arising out
of the wrongful act of any employee, official, or agents of the Federal Government.
(e) Nothing contained herein shall imply a license to the Federal Government under
any patent or be construed as affecting the scope of any license or other right otherwise
granted to the Federal Government under any patent.
(f) Data developed by Professional and financed entirely without using Federal
assistance provided by the Federal Government that has been incorporated into work
required by the underlying contract to which this Attachment has been added is exempt
from the requirements of subsections (b), (c), and (d) of this clause, provided that
Professional identifies that data in writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise, Professional agrees to include these
requirements in each subcontract for experimental, developmental, or research work
financed in whole or in part with Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in writing,
irrespective of Professional's status (i.e., a large business, small business, state
government or state instrumentality, local government, nonprofit organization, institution
of higher education, individual, etc.), the MPO and Professional agree to take the
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necessary actions to provide, through FTA, those rights in that invention due the Federal
Government as described in U.S. Department of Commerce regulations, "Rights to
Inventions Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401.
(4) Professional agrees to include these requirements in each subcontract for
experimental, developmental, or research work financed in whole or in part with Federal
assistance provided by FTA.
B. Patent Rights:
(1) If any invention, improvement, or discovery is conceived or first actually
reduced to practice in the course of or under this Agreement, and that invention,
improvement, or discovery is patentable under the laws of the United States of America
or any foreign country, Professional agrees to take actions necessary to provide
immediate notice and a detailed report to the party at a higher tier until FTA is
ultimately notified.
(2) Unless the Federal Government later makes a contrary determination in writing,
irrespective of Professional's status (a large business, small business, state government
or state instrumentality, local government, nonprofit organization, institution of higher
education, individual), Professional agrees to take the necessary actions to provide,
through FTA, those rights in that invention due the Federal Government as described in
U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants, Contracts and
Cooperative Agreements," 37 C.F.R. Part 401.
(3) Professional agrees to include the requirements of this clause in each subcontract
for experimental, developmental, or research work financed in whole or in part with
Federal assistance provided by FTA.
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Professional was not in default, the rights and obligations of the parties shall be the same as if the
termination had been issued for the convenience of the MPO.
6. Opportunity to Cure. In the case of a breach or default, the MPO may, in its sole
discretion, allow Professional a period of time in which to cure the defect. In such case, the
notice of termination shall state the time period in which cure is permitted and other appropriate
conditions. If Professional fails to remedy to the MPO's satisfaction the breach or default or any
of the terms, covenants, or conditions of this Agreement within ten (10) days after receipt by
Professional of written notice from the MPO setting forth the nature of said breach or default, the
MPO may terminate the Agreement without any further obligation to Professional and seek
damages, may treat the Agreement as continuing and require specific performance, or may avail
itself of any other remedy at law or equity. If the MPO commences legal or equitable actions
against Professional, Professional shall be liable to the MPO for the MPO's reasonable attorney
fees and costs incurred because of the default. Any such termination for default shall not in any
way operate to preclude the MPO from also pursuing all available remedies against Professional
and its sureties for said breach or default.
7. Waiver of Remedies for any Breach. If the MPO elects to waive its remedies for
any breach by Professional of any covenant, term or condition of this Agreement, such waiver by
the MPO shall not limit the MPO's remedies for any succeeding breach of that or of any other
term, covenant, or condition of this Agreement.
8. Responsibility. Professional shall be responsible for the professional quality,
technical accuracy, timely completion and the coordination of all services rendered by the
Professional, including but not limited to designs, plans, reports, specifications, and drawings
and shall, without additional compensation, promptly remedy and correct any errors, omissions,
or other deficiencies.
9. Indemnification. Professional shall indemnify, hold harmless and defend the
MPO and its representatives, officers, employees, agents, and contractors from and against all
liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or
judgments, including, without limitation, reasonable attorney fees, arising from or in any way
connected with injury to or the death of any person or physical damage to any property resulting
from any act, omission, condition, or other matter related to this Agreement.
10. Insurance. Professional shall maintain commercial general liability insurance in
the amount of $500,000 combined single limits, and errors and omissions insurance in the
amount of $1,000,000.
11. Compensation. In consideration of the services to be performed pursuant to this
Agreement, the MPO agrees to pay Professional on a time and reimbursable direct cost basis
designated in Exhibit B, attached hereto and incorporated herein by this reference. At the
election of the MPO, each Work Order may contain a maximum fee, which shall be negotiated
by the parties hereto for each such Work Order. Monthly invoices are required and shall include
a description of services performed, along with number of hours and stated rates per hour.
Supporting documentation shall also be submitted for any reimbursable direct costs. The
amounts of all such billings shall be based upon the Professional's MPO-verified progress in
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completing the services to be performed pursuant to the Scope of Services on each Work Order
and upon approval of the Professional's direct reimbursable expenses. Final payment shall be
made following acceptance of the work by the MPO.
12. Records and Reports. The MPO and Professional shall maintain all books,
records, and other documentation pertaining to the Scope of Services and necessary to
completely substantiate all costs incurred and billed to the MPO during the term of this
Agreement for a period of three (3) years from the date of final payment under the terms of this
Agreement. These records shall be made available for inspection and audit to any state or
federal authority authorized to inspect such records and copies thereof shall be furnished at the
expense of Professional, if so requested.
13. Ownership of Work Product. Upon final payment, all designs, plans, reports,
specifications, drawings, and other services rendered by Professional shall become the sole
property of the MPO, which shall have the royalty -free, nonexclusive and irrevocable right to
reproduce, publish, or otherwise use and authorize others to use all such materials for authorized
government purposes. Other entities that may reproduce, publish, or otherwise use the designs,
plans, reports, specifications, drawings, and other services rendered by Professional include but
are not limited to the Colorado Department of Transportation ("CDOT"), the Federal
Transportation Administration ("FTA"), and the Federal Highway Administration ("FHWA").
Exclusions shall apply only to copyrighted or royalty -protected photos, illustrations and/or
images for which outright ownership may not be lawfully conveyed by the Professional to the
MPO. This includes any stock photo, illustration, and/or image which is the rightful property of a
third party (typically a stock image vendor) and was rented, leased, or used by the Professional in
behalf of the MPO for a specified period of time or purpose only, under provisions of standard
usage agreements.
14. MPO Representative. The MPO shall designate, prior to commencement of work,
its project representative who shall make, within the scope of his or her authority, all necessary
and proper decisions with reference to the project. All requests for contract interpretations,
change orders, and other clarification or instruction shall be directed to the MPO Representative.
15. Project Documents. Upon conclusion of the project and before final payment, the
Professional shall provide the MPO with reproducible documents of the project containing
accurate information on the project as designed. Documents shall be of archival quality, and also
available in an electronic format, in an agreed upon format.
16. Monthly Report. Commencing at the end of the calendar month following the
date of execution of this Agreement and every calendar month end thereafter, Professional shall
provide the MPO with a written report of the status of the work. Failure to provide any required
monthly report may, at the option of the MPO, suspend the processing of any partial payment
request.
I7. Independent Contractor. The services to be performed by Professional are those
of an independent contractor and not of an employee of the MPO. The MPO shall not be
responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
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18. Personal Services. It is understood t11at the MPO enters into this Agreement
based on the special abilities of Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, Professional shall neither assign any
responsibilities nor delegate any duties, nor create any subcontracts arising under this Agreement
without the prior written consent of the MPO.
19. Conflict of Interests and Prohibited Interests. The MPO and Professional
represent that neither has any interests and shall not acquire any interests, directly or indirectly,
that would conflict in any manner or degree with the performance and services required to be
performed under this Agreement. The MPO and Professional further represent that no member
or delegate to the Congress of the United States shall be admitted to any share or part of this
Agreement or to any benefit arising therefrom. In addition no employee, officer, or agent of the
MPO shall participate in selection or in the award or administration of this Agreement if a
conflict of interest, real or apparent, would be involved. Such conflict would arise when the
employee, officer or agent; any member of his immediate family; his or her partner; or an
organization which employs, or is about to employ any of the foregoing, has a financial or other
interest in the firm selected for award. The MPO's officers, employees, or agents shall neither
solicit nor accept gratuities, favors or anything of monetary value from contractors, potential
contractors, or parties of subagreements.
20. No Waiver. The MPO's approval of drawings, designs, plans, specifications,
reports, and incidental work or materials furnished hereunder shall not in any way relieve the
Professional of responsibility for the quality or technical accuracy of the work. The MPO's
approval or acceptance of, or payment for, any of the services shall not be construed to operate
as a waiver of any rights or benefits provided to the MPO under this Agreement.
21. No Government Obligation to Third Parties. The MPO and Professional
acknowledge and agree that, notwithstanding any concurrence by the federal government in or
approval of the solicitation or award of the underlying contract, absent the express written
consent by the federal government, the federal government is not a party to this Agreement and
shall not be subject to any obligations or liabilities to the MPO, Professional, or any other party
(whether or not a party to this Agreement) pertaining to any matter resulting from this
Agreement.
22. Notices. All notices provided under this Agreement shall be effective when
mailed, postage prepaid and sent to the following addresses:
Professional:
MPO:
With Copy to:
AB Advertising
THE NFRT & AQPC
City of Fort Collins
Attn: Nicole Asselin
Attn: John Daggett
Purchasing Division
Address 161617th Si, Ste 600
235 Mathews St.
P.O. Box 580
City, ST, Zip: Denver, CO
Fort Collins, CO 80524
Ft Collins, CO 80522
80202
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23. Incorporation of FTA Terms. This Agreement includes certain Standard Terms
and Conditions required by the federal Department of Transportation ("DOT") and other federal
and state authorities, whether or not expressly set forth in this Agreement. All contractual
provisions required by DOT, as set forth in FTA Circular 4220.1 D, dated April 15, 1996, are
hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in the event of a conflict with other provisions
contained in this Agreement. Professional shall not perform any act, fail to perform any act, or
refuse to comply with any the MPO requests which would cause the MPO to be in violation of
the FTA terms and conditions.
24. Grant Assurances and Federal Requirements. This Agreement involves the
expenditure of federal funds, which requires the MPO and Professional at all times during the
execution of this Agreement to adhere to and comply with all applicable federal laws and
regulations, as they currently exist and may hereafter be amended, which are incorporated
herein by this reference as terms and conditions of this Agreement. A non -exhaustive list of
federal laws and regulations that may be applicable is included below. By signing this
Agreement, Professional avers that it is his or her responsibility to be aware of the requirements
that may be imposed by the following federal laws and regulations, and others not listed, that he
or she is aware of any such requirements, and that he or she will comply with all applicable laws
and regulations.
a. Laws and regulations prohibiting false claims and statements from being
made to the federal government, 31 U.S.C.A § 3801, et seq., 49 C.F.R. Part 31, and 18
U.S.C.A. § 1001;
b. Federal privacy law, 5 U.S.C.A. § 552;
C. Nondiscrimination and equal employment opportunity laws in accordance
with Title VI of the Civil Rights Act, 42 U.S.C.A. § 2000d; § 303 of the Age
Discrimination Act of 1975, 42 U.S.C.A. § 6102; § 202 of the Americans with
Disabilities Act of 1990, 42 U.S.C.A. § 12132 ("ADA" ); and Federal transit law, 49
U.S.C.A. § 5332;
d. Mandatory standards and policies relating to energy efficiency that are
contained in the state energy conservation plan issued in compliance with the Energy
Policy and Conservation Act, 42 U.S.C.A. § 6201.
25. Binding Effect. This Agreement, together with the exhibits hereto, constitutes the
entire agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs,
personal representatives, successors and assigns of said parties.
26. Governing Law. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement.
27. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision of this Agreement.
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28. Special Provisions. Special provisions or conditions relating to federal patent law
and rights in data that are applicable to this Agreement are set forth in Exhibit C, attached hereto
and incorporated herein by this reference.
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THE NORTH FRONT RANGE TRANSPORTATION
AND AIR QUALITY PLANNING COUNCIL (WO)
- 046 w
Cliff Da on, xecutive Director
PROFESS SIONAi��
STATE OF COLORADO )
ss.
COUNTY OF '(� nV4 I )
The foregoing instrument was subscribed, sworn to and acknowledged before me this
day of A)nwA.Lb,t , 2005, by �aa&� N c [as of ]
My commission expires:
(SEAL)
Notary Public
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EXHIBIT A
WORK ORDER FORM
PURSUANT TO AN AGREEMENT BETWEEN
THE NORTH FRONT RANGE TRANSPORTATION AND AIR QUALITY PLANNING COUNCIL
AND
Andrews Birt. Incomorated dba AB Advertising
DATED: November 7, 2005
Work Order Number.
Purchase Order Number.
Project Title:
Commencement Date:
Completion Date:
Maximum Fee (time and reimbursable direct costs) not to exceed:
Project Description:
Scope of Services:
Acceptance
User
Professional agrees to perform the services
identified above and on the attached forms in
accordance with the terms and conditions
contained herein and in the Professional
Services Agreement between the parties. In the
event of a conflict between or ambiguity in the
terms of the Professional Services Agreement
and this work order (including the attached
forms) the Professional Services Agreement
shall control.
Professional
By:
Date:
The attached forms consisting of _ U pages
are hereby accepted and incorporated herein, by
this reference, and Notice to Proceed is hereby
given.
THE NORTH FRONT RANGE
TRANSPORTATION AND AIR QUALITY
PLANNING COUNCIL
By:.
Date:
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EXHIBIT B
[INSERT COMPENSATION RATES HERE]
FUNCTION
RESPONSIBILITY
HOURLY RATE
Senior Account Supervisor
F. Macd
$180
Senior Creative Direction
C. Birt
$180
Senior Account Manager
N. Asselin
$160
Senior PR Manager
H. Lusky
$140
Senior Media Planner
J. Sandstrom
$140
Media Placement
various
$120
Account Executive
TBD
$140
Ass'tAccount Executive
B. Johnson
$120
Art Direction
D. Novak/D. Krewinghaus
$140
Copy Writing
various
$150
Production Art
various
$120
Production Management
B.Johnson
$105
Computer Assembly
various
$105
Research (in-house)
various
$100
Transit Consultant
J. Graebner
$180
Administrative
J. Paulson/Staff
$ 85
Press Checks
various
$120
Web Programming front end
AB Sticky Media
$140
Proofing
various
$105
Flash/After Effects Programming
AB SUcky Media
$150
Video Art Direction
various
$150
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