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HomeMy WebLinkAboutCOLORADO OFFICE ECONOMIC DEVELOPMENT - CONTRACT - AGREEMENT MISC - WELCOME CENTERCTO # Department or Agency Number EDA Contract Routing Number CONTRACT THIS CONTRACT, made this day of , 2005 , by and between the State of Colorado for the use and benefit of the Colorado Tourism Office in the Colorado Office of Economic Development,1625 Broadway Room 1710, Denver, CO 80202, hereinafter referred to as the State or "CTO," and City of Fort Collins, PO Box 580 281 N. College, Fort Collins, CO 80522-0586, hereinafter referred to as the Contractor. WHEREAS, authority exists in the Law and Funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment in Fund Numbers 100 , Appropriation Code 304 , Org. WFCO , Contract Encumbrance Number PO EDA - ;and WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, the Colorado Tourism Office has been created in the Office ofthe Governor (24-49.7-103, C.R.S.) and the Board of Directors of the Colorado Tourism Office (the `Board") is empowered to expend funds for the planning, advertising, promotion, assistance, and development of tourism and travel industries in the state (24-49.7-104, C.R.S.), including operating state visitors' centers (24-49.7-104(1)(f) and (g), C.R.S.); and WHEREAS, 24-49.7-107, C.R.S., exempts the Colorado Tourism Office from the provisions of the State "Procurement Code" (24-101-101 through 24-101-112, C.R.S.); and WHEREAS, funding was provided in the annual appropriations bill for tourism promotion activities; and WHEREAS, the State, acting by and through the Colorado Tourism Office in the Colorado Office of Economic Development in the Office of the Governor, has determined that it will be efficient and effective to contract with Contractor for the operation of a state visitors' center as provided herein; NOW THEREFORE, it is hereby agreed that in consideration of the mutual covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. CONTRACT PERIOD The time period to be covered by this Contract is from the execution date of this contract through and including June 30, 2006. The State, in its sole discretion, may extend this Contract for up to 12 additional months subject to the mutual agreement of the State and the Contractor. A request for extension by the Contractor shall be submitted to the State at least 30 days prior to the expiration of the Contract with a full justification for the extension request. 2. SCOPE OF WORK Contractor shall operate as a state visitors' center the premises, hereinafter referred to as "Premises" or the "Welcome Center," known and described as follows: Colorado Welcome Center, 3745 E. Prospect Rd, Fort Collins, CO, for the period beginning July 1, 2005, and ending June 30, 2006. The Contractor's responsibilities in operating the Welcome Center shall include: a. Recruit, select and employ a manager and any staff necessary to operate the Welcome Center as described herein as employees or subcontractors of the Contractor. Prior to hiring the employee, a representative of the Colorado Tourism Office must approve all potential employees selected as a manager or assistant manager. In working with the Contractor, the Colorado Tourism Office retains the right to recommend corrective actions or termination of any persons failing to perform the duties agreed upon for that position. Page 1 of 9 Pages The manager reports to and is supervised by the Welcome Center Program Manager and the Colorado Tourism Office Director; b. Recruit, select, supervise and appropriately recognize the efforts of volunteers necessary to operate the Welcome Center; C. Provide all necessary interior and exterior building maintenance, landscaping and related maintenance, snow removal, and janitorial services; d. Provide all utilities and insurance; e. Submit in a timely fashion all regular reports required by the State; f. Secure hospitality and state tourism attractions training for staff and volunteers, and at least once each year require that the manager of the Welcome Center attend and participate in training opportunities provided by the State; g. Recognizing the State's intent is to promote the entire state fairly, without bias to any community, organization, association or business, interact with travelers in such a way as to provide information on events, attractions, activities and accommodations throughout the state. This is not intended to prohibit the Contractor from providing information on local and regional events, attractions, activities and accommodations; h. Operate from 8:00 A.M. until 6:00 P.M. during the summer season (beginning Memorial Day weekend in May through Labor Day) and from 8:00 A.M. until 5:00 P.M. during the winter season (the Tuesday after Labor Day through the Friday before Memorial Day weekend in May); i. Display a state map provided by the State; j. Prohibit advertising displays, signs, or posters, solicitations or sales transactions of any kind on those portions of the Premises used for Welcome Center operations; k. Obtain State approval of all brochures and pamphlets prior to display or distribution. Maintain 90% of the various brochures, which are listed as "Required Brochures For Display at a Colorado Welcome Center". State approval will be based on the brochure distribution guidelines contained in the Managers Operation Manual for the Colorado Welcome Center Program The Contractor will be given an opportunity to participate with other state Welcome Center contractors and managers in periodically updating and revising the Manual. This is not intended to prevent or prohibit the Contractor from displaying any brochures or pamphlets in an area reserved by the Contractor for information on local events, attractions, activities and accommodations; 1. Use existing state-owned furnishings and equipment for Welcome Center operations and report annually to the state on the condition and status of such furnishings and equipment; and m Agree to comply with the policy and procedures contained in the "Managers Operations Manual." 3. BUDGET AND PAYMENT The total amount payable under the terms and conditions of this Contract from date of execution through the end of the contract period stated in Paragraph 2 above shall not exceed FIFTY-SIX THOUSAND SEVEN HUNDRED EIGHTY-EIGHT dollars (56 788)Any amounts in excess of this total, if agreed to by both parties, must be provided by a properly executed amendment to this contract. Page 2 of 9 Pages Task Budget Welcome Center Operations $49,188 Volunteer Training 7,600 56,788 The State, in consideration for the services to be provided by the Contractor during the term of this Contract, shall pay the Contractor as follows: $7,300 Initial payment, upon full execution of this Contract The balance, upon receipt and approval of invoices from the Contractor summarizing personnel, volunteer training and enhancement, travel, and major categories of operating and capital outlay expenses incurred for the operation of the Welcome Center. Contractor should request reimbursement at least quarterly and no more frequently than monthly. 4. INFORMATION UPDATES The Contractor is required to report any changes in ownership or management in writing to the Director of the Office of Economic Development within thirty (30) days of the date such change becomes effective. The State may, at its discretion, terminate the contract if such changes would have prevented the State from initially awarding such Contractor the contract. 5. NEWS RELEASES The Contractor shall not issue news releases regarding matters concerning the State without the approval of the State. 6. PREVAILING WAGES The Contractor shall comply with all State laws, rules and regulations pertaining to prevailing wages and shall require such compliance by all its subcontractors. 7. ASSIGNMENT The Contractor shall not assign, transfer, convey, or in any way dispose of this Contract, or any right, title, or interest herein, without the prior written approval of the State. 8. BENEFIT The agreement is for the benefit of the Contractor and the State, and not for the benefit of any third party or person. 9. COVENANT AGAINST CONTINGENT FEES The Contractor warrants that it has not employed or retained any company or person (other than a bona fide employee working solely for the offeror) to solicit or secure this Contract, and that it has not paid or agreed to pay any person or entity (other than a bona fide employee working solely for the offeror) any fee, commission, percentage, brokerage fee, gift or other consideration on a basis that is contingent upon the award of this Contract. For breach or violation of this warranty, the State shall have the right to annul the Contract without liability, or, in its discretion, to deduct from the Contract price, the full amount of such commission, percentage, brokerage, or contingent fee. Page 3 of 9 Pages 10. PATENTS, COPYRIGHTS, TRADEMARKS, AND SERVICEMARKS To the extent authorized by law, the Contractor shall indemnify the State and hold it harmless from any and all claims that the materials or services provided to the State infringe any rights under any existing valid patent, copyright, trademarks, servicemark or other intellectual property protected by law. 11. RIGHT OF INSPECTION The State will retain the right to inspect any phase of the advertising system or operation either on a continuing or a spot-check basis. 12. TERMINATION OF CONTRACT FOR CONVENIENCE OF STATE The State retains the option to terminate, at its convenience, this Contract as to any services it has not yet ordered. If the State terminates an order for services that it has already ordered, at its convenience, the Contractor shall be entitled to compensation for expenses incurred to date for work performed pursuant to this contract, upon submission of invoices and proper proof of claim, including, without limitation, binding commitments made in connection with the manufacture of advertising materials or services not otherwise usable by the Contractor. In such event, at the request of the State, Contractor shall furnish copies of all proposals, specifications, procedures, systems, or other materials related to its performance hereunder, whether finished or in preparation, at the time of termination. Any materials for which Contractor is reimbursed hereunder shall become the property of the State. 13. TERMINATION FOR CAUSE a. If through any cause, the Contractor shall fail to fulfill in a timely and proper manner its obligations under this Contract or if the Contractor shall violate any of the covenants, agreements, or stipulations of this Contract, the State shall thereupon have the right to terminate this Contract for cause by giving written notice at least twenty (20) days before the effective date of such termination to the Contractor and specifying the effective date thereof. If within ten (10) days of receipt of notice of termination, the Contractor shows to the satisfaction of the State that it has remedied such violations, the notice of termination shall be withdrawn. Notwithstanding the above, the State reserves the right to terminate the Contract immediately upon the mailing of written notice to the Contractor in the case of any of the following circumstances: i. If the Contractor furnished any statement, representation, warranty or certification in connection with the solicitation or the resultant contract which is materially false, deceptive, incorrect, or incomplete. ii. If the Contractor fails to perform to the State's satisfaction any material requirement of the contract or is in violation of any specific provision. iii. If the State determines satisfactory performance of the contract is substantially endangered or can reasonably anticipate such an occurrence or default. iv. If funds are not appropriated by the state legislature for this purpose. v. Unlawful discrimination by the Contractor on the basis of race, color, religion, national origin, age, sex or disability. b. In the even of termination of the Contract, all finished or unfinished documents, data, studies, surveys, drawings, models, photographs, reports, media contracts, and other materials prepared by the Contractor under this Contract shall at the option of the State become its property, and the Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed upon such documents and Page 4 of 9 Pages materials. In any event, the Contractor shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the Contract by the Contractor and the State may withhold any payments to the Contractor for the purpose of setoff until such time as the exact amount of damages due the State from the Contractor is determined. C. In the event of a termination of this Contract by the State prior to the end of the term hereof or upon expiration of the term hereof, and in the further event Contractor has performed any work whatsoever upon future project(s), Contractor shall be entitled to receive reimbursement for any and all out-of-pocket expenses for work by Contractor upon said project(s), all in accordance with the terms of this Contract. d. The State will not be liable for any costs incurred by the Contractor if termination is for any of the causes stated in subparagraphs a.(i), a.(ii), a.(iii), or a.(v) above. The State will reimburse the Contractor for its actual costs to date if termination results from the cause stated in a.(iv) above (fluids not appropriated). The Contractor shall be entitled to compensation for expenses incurred to date for work performed pursuant to this contract, upon submission of invoices and proper proof of clairn, including, without limitation, binding commitments made in connection with the manufacture of advertising materials or services not otherwise usable by the Contractor. In such event, at the request of the State, the Contractor shall furnish copies of all proposals, specifications, designs, procedures, systems, or other materials related to its performance hereunder, whether finished or in preparation, at the time of termination. e. In event of a termination for the causes in subparagraphs a.(i), a.(ii), a.(iii), or a.(v) above, the State reserves the right to cover its requirements by reassigning the contract to another advertising agency without rebidding. The State has the option to assume ongoing media contracts. 14. CONTRACT AMENDMENTS This contract may not be modified, extended, or augmented except by a written contract amendment executed by the parties hereto, and any breach or default by a party shall not be waived or released other than in writing assigned by the other party. 15. AUTHORITY TO EXECUTE AGREEMENT The persons signing this contract warrant and represent that they have full right, power and authority to execute this contract on behalf of their respective parties. 16. INTEGRATION OF UNDERSTANDINGS This Agreement is intended as the complete integration of all understandings between the Parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied in writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect, unless embodied in a written contract executed and approved pursuant to the State fiscal rules. 17. ACCOUNTING RECORDS The Contractor will be required to maintain financial and accounting records and evidence pertaining to the contract in accordance with generally accepted accounting principles and other procedures specified by the State. All the Contractor's books, records, and supporting documentation, including but not limited to financial, accounting, security and personnel records, shall be available for inspection by any representative of the Colorado Office of Economic Development, State Auditor's Office, and the Office of the Attorney General during normal business hours. The Contractor shall keep and maintain said records during the contract period, including any extension thereof, and for a period ending three (3) years after the date of final payment on the contract, including any extensions thereof. Page 5 of 9 Pages 18. INSURANCE A. The contractor shall obtain, and maintain at all times during the term of this contract, insurance in the following kinds and amounts: 1) Workers' Compensation Insurance as required by state statute, and Employer's Liability Insurance covering all of contractor's employees acting within the course and scope of their employment. 2) Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the contractor shall immediately obtain additional insurance to restore the fall aggregate limit and furnish to the State a certificate or other document satisfactory to the State showing compliance with this provision. 3) Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit as follows: $1,000,000 each accident combined single limit. B. The State of Colorado shall be named as additional insured on the Commercial General Liability and Automobile Liability Insurance policies (leases and construction contracts will require the additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). Coverage required of the contract will be primary over any insurance or self-insurance program carried by the State of Colorado. C. The Insurance shall include provisions preventing cancellation or non -renewal without at least 45 days prior notice to the State by certified mail. D. The contractor will require all insurance policies in any way related to the contract and secured and maintained by the contractor to include clauses stating that each carver will waive all rights of recovery, under subrogation or otherwise, against the State of Colorado, its agencies, institutions, organizations, officers, agents, employees and volunteers. E. All policies evidencing the insurance coverages required hereunder shall be issued by insurance companies satisfactory to the State. F. The contractor shall provide certificates showing insurance coverage required by this contract to the State within 7 business days of the effective date of the contract, but in no event later than the commencement of the services or delivery of the goods under the contract. No later than 15 days prior to the expiration date of any such coverage, the contractor shall deliver the State certificates of insurance evidencing renewals thereof. At any time during the term of this contract, the State may request in writing, and the contractor shall thereupon within 10 days supply to the State, evidence satisfactory to the State of compliance with the provisions of this section. G. Notwithstanding subsection A of this section, if the contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act CRS 24-10-101, et seq., as amended ("Act'), the contractor shall at all times during the term of this contract maintain only such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the Act. Upon request by the State, the contractor shall show proof of such insurance satisfactory to the State. 19. TAXES The state agency, as purchaser, is exempt from all federal excise taxes under Chapter 32 of the Internal Revenue Code [No. 84-730123K] and from all state and local government use taxes [C.R.S. 39-26-114(a) and 203, as amended]. Vendor is hereby notified that when materials are purchased for the benefit of the State, such exemptions apply except that in certain political subdivisions (for example - City of Denver) the vendor maybe required to pay sales or use taxes even thought the ultimate product or service is provided to the State. These sales or use taxes will not be reimbursed by the state. 20. INTELLECTUAL PROPERTY A. Contractor will indemnify State for its reasonably incurred legal expenses and will defend or settle, at Contractor's option and expense, any legal proceeding brought against State, to the extent that it is based on a Page 6 of 9 Pages claim that products infringe a trade secret, trademark, mask work, copyright, or patent. Contractor will pay all such expenses, together with damages and costs awarded by the court which finally determines the case, or are incurred in the settlement thereof, if State: (i) gives written notice of the claim promptly to Contractor; (ii) gives Contractor control of the defense and settlement of the claim; (iii) provides to Contractor, at Contractor's expense, all available information and assistance; and (iv) has not compromised or settled such claim. B. If products are found to infringe, Contractor will: (i) obtain for State the right to use such products; (ii) replace the products with non -infringing products or modify the products so that they become non -infringing; or, if neither of these Alternatives is reasonably available, (iii) remove the infringing products and refund the price paid therefore. C. Contractor has no obligation under this section 20 for any claim which results from: (i) use of products in combination with any non -Contractor provided equipment, software or data; (ii) Contractor's compliance with designs or specification of State; (iii) modification of products other than at Contractor's direction; or (iv) use of an allegedly infringing version ofproducts, if the alleged infringement could be avoided by the use of a different version made available to State. 21. ORDER OF PRECEDENCE In the event of conflicts or inconsistencies between this contract and its exhibits or attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: 1) Colorado Special Provisions, page 8; 2) Contract, pages 1 to 7. Page 7 of 9 Pages SPECIAL PROVISIONS (For Use Only with Inter -Governmental Contracts) 1. FUND AVAILABILITY. CRS 24-30-202 (5.5) Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 2. INDEMNIFICATION. To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the State against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions for the parties, of the Colorado Governmental ImmunityAct, CRS 24-10-101 etseq. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. 3. INDEPENDENT CONTRACTOR. 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALLBE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALLPROVIDE AND KEEP INFORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. 4. NON-DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. CHOICE OF LAW The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established. 6. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition, operation or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use ofpubhc funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. 7. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 & CRS 24-50-507 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Effective Date April 1, 2004 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: STATE OF COLORADO: BILL .OWENs GOVERNOR By F. Robert Lee, Chief of Staff Darin Atteberry, City Manager Print Name & Title of Authorized Officer , OF FORT CORPORATIONS: U�K ••, , 1. ' 1jr Attest *(�j C 1 ty e L. ; (P e corporate seal here, if available.) APPROVED AS TO FORM: . I Assistan ZZlity Attorney Page 9 of 9