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HomeMy WebLinkAboutLEIBOWITZ HORTON - CONTRACT - CONTRACT - FORT COLLINS AIRPORTAGREEMENT For Professional Services THIS AGREEMENT ("Agreement") is made and entered into this lla V'`day of f�G�b 200 by and between CITY OF LOVELAND, COLORADO, a home rule municipality, AND CITY OF FORT COLLINS, COLORADO, a home rule municipality, collectively known as ("Cities"), and LEIBOWITZ & HORTON ("Consultant"). WHEREAS, Cities are undertaking a project known as Passenger Facility Charge Application ("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 provides 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, capacity, 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 Twenty-one Thousand Four Hundred Fifty Dollars ($ 21,450), 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 perfoi r ied for which payment is requested. 3. Term. The Term of this Agreement shall be from the date first written above until October 1, 2004, 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 Cities' 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 f year -by -fiscal year basis. Page I of 7 Fees Our fee for services for completion of the PFC application is $19,950.00. In addition to our fees for services, actual out -of -pocket expenses for application production and travel to Fort Collins/Loveland will be charged with no markup. Total out -of- pocket expenses are estimated to be less than $1,500. Should circumstances arise which increase the scope of work beyond that which we have currently identified, we will discuss the situation with you and obtain your approval before proceeding. According to federal regulations, these fees and out of pocket expenses are reimbursable from PFC revenue as an allowable project formation cost. If you need additional information or have any questions, please contact me at (303) 773-6761. Thank you for your consideration. We look forward to working with you on this important proj ect. Seely, Lynn eibowitz Presid nt FORT COLLINS LOVELAND MUNICIPAL AIRPORT Loveland, Colorado Preliminary PFC Implementation Schedule DATE ACTIVITY 10/1-10 Meeting/Conference calls with Airport to discuss projects and review PFC process 10/10-17 Prepare draft airline notice with project descriptions and cost estimates Justify selected projects, determine airspace, environmental, ALP and funding requirement issues, review with airport, revise as necessary 10/17 Finalize projects and notice, Draft PFC Resolutions for both Cities to implement a $4.50 PFC and submit application 10/18 Official Notices Sent to Airlines of PFC Application 10/20-11/10 Prepare financial plan for PFC Application, draft airline handouts for consultation meeting, Prepare project information and Attachment B November City Council Meetings to approve PFC Resolutions 11/21 Airline Consultation meeting 11:00 am 11/21-12/20 Draft Actual PFC Application 12/21 Airline Certification of Agreement/Disagreement Review PFC application draft 12/22 Submit PFC Application to FAA 1/21 FAA determines Application substantially complete 4/24/2004 FAA Approval of PFC Application 4/25/2004 Notify airlines of Application Approval 7/l/2004 Earliest PFC Collection date 5. Monitorin 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 Cities' and other a monitoring and evaluating criteria and standards. Consultant shall cooperate with Cities relating to such monitoringapplicable and evaluation. 6. Cities_ pross y Reports, surve and any other tangible materials produced b y 'maps, plans, drawings, photographs, at all times be considered Cities property, y Consultant pursuant to this Agreement shall 7• Independent Contractor. The parties agree that Consultant shall be an independent contractor and shall not be an employee, a Consultant is not entitled to workers' com ensation benefits from Cities and is obligated 'o a federal and state income tax on an gent, or servant of Cities. mone earned ursuant to this A reement. 8. Insurance Requirements. a. Com rehensive General Liability Insurance. Procure and keep in force during the duration of this Agreement Consul ant shall 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 , limit Q000) each occurrence. The limits of said insurance shall not, however, limit the liability of Consultant hereunder. b• Com rehensive Automobile Liabilit Insurance. procure and keep in force during the duration oConsultant shall f this Agreement a policy of comprehensive automobile liability insurance in surin Cities as an additional insured against Consultant nnaming injury, or death arising out of any liability for ninjury,the use of motor vehicles and covering opera ons site of all motor vehicles controlled by Consultant which areu ed in on or off the 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 Consultant h. The limits of said insurance shall not, however, limit the liability of Consultant hereunder. C. Professional Liabilit Insurance. engineer, surveyor, appraiser, If Consultant is physician, attorney an architect, Professional, or if it is customary in the trade or businessnnanwh which onsultant ior Other s engaged to carry professional liability insurance, or if the Cities otherwise deem 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. Page 2 of 7 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). 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. 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 Page 3 of 7 upon joint written request of subcontractor and Consultant if, in Cities' opinion, such variations do not substantially affect Cities' interests. 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 Cities' 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. 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 Latimer, State of Colorado. 12. Assignability. Consultant shall not assign this Agreement without Cities' prior written consent. Page 4 of 7 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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 Loveland: Name: David Gordon Title: Airport Director CITY OF LOVELAND 4900 Earhart Road Address: Loveland, Colorado 80538 If to Fort Collins: Name: City Clerks CITY OF FORT COLLINS Address: P.O. Box 580 Fort Collins, Colorado 80522 If to Consultant: Name: Lynn Leibowitz Title: President LEIBOWITZ & HORTON 31 Blue Heron Drive Address: Greenwood Village, Colorado 80121 Page 5 of 7 19. 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. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. CITY OF LOVELAND, COLORADO c 1110 �, <y ` By: Title:_Z s ATTEST: 'n;'•" ' try City APPROVED AS TO FORM: ci zaL 'L "ti" City Attorney/ b �k. ATTEST: f�io�L City Clerk IN, Pi %" J OM I / r_�,/ I/ CITY OF FORT COLLINS, COLORADO %� By: (� O Title: 2z� 4-- foe- C-40 1;.Vn -t-- Page 6 of 7 CONSULTANT: LEIBOW Inc. n / (\ / ! (ITZHRTON AMC, 0 Title: STATE OF COLORADO ) ss. COUNTY OF 1Q4A) The foregoing Agreement was acknowledged before me this day of �mn 2003_ by ( cP� w' i la Witness my hand and official seal. My Commission Expires 111),)4 igk/ Notary Pu 'c Page 7 of 7 EXHIBIT A SERVICES September 4, 2003 Mr. David C. Gordon, A.A.E. Airport Manager Fort Collins Loveland Municipal Airport 4900 Earhart Road Loveland, Colorado 80538 Dear Mr. Gordon: I appreciated the opportunity to talk with you about preparing a Passenger Facility Application (PFC) for the Fort Collins Loveland Municipal Airport (Airport). As we discussed, the PFC application process takes a minimum of 10 months by law to be effective. The process we propose to prepare the PFC application includes the following tasks: Review actual enplanements at Airport from start of commercial service to date Work with Airport and FAA to verify that 2,500 enplanements will be achieved this year and that published scheduled air carrier service exists Preparation of PFC Application Conduct Interviews with Airport management regarding unique Airport circumstances and objectives for using PFCs Review CIP and Current Master Plan draft to assist in preparation of list of potential capital projects with descriptions, review current enplanement information and estimate future schedule service for revenue potential revenue estimate, discuss possible Air Taxi exemption Preparation of required notice to Airlines Validation that your capital projects qualify under the federal PFC legislation, are on an approved ALP, status of environmental and air space approvals Prepare financial Plan and other required information for airlines Formal consultation with the air carriers Prepare responses to Airline's written comments and concerns Passage of City Resolutions for institution of a $4.50 PFC at the Airport, capital projects approval and for application submission approval (Both Cities of Loveland and Fort Collins) Preparation of the application to the FAA with all required documentation Coordination with the FAA to ensure timely approval of the application Prepare notice to carriers of application approval. Project Timing We are prepared to begin this project at your earliest convenience. We anticipate completing the application and submitting it to the FAA for review within three months of our notice to proceed. A preliminary schedule is attached for your review which assumes an October 1, 2003 start date. The attached schedule assumes the time allowed by federal regulation relating to Airline and FAA reviews.