HomeMy WebLinkAboutPACIFIC INTERMEDIA - CONTRACT - RFP - P1001 WEBSITE DEVELOPMENT NFRMPOPROFESSIONAL (WORK ORDER) SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of January, 2006, by
and between THE NORTH FRONT RANGE TRANSPORTATION AND AIR QUALITY
PLANNING COUNCIL hereinafter referred to as the "MPO and Pacific Intermedia, Inc.,
a corporation, hereinafter referred to as "Professional".
In consideration of the mutual covenants and obligations herein expressed, it is
agreed by and between the parties hereto as follows:
1. Scope of Services. Professional shall perform support services for web
design & development, database maintenance & integration, and e-commerce design
type tasks and related work as needed on the MPO websites, as described in Request
for Proposal P1001. 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 January 1, 2006, and shall
continue in full force and effect until December 31, 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 thirty (30) 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
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EXHIBIT 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)I 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.
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1. Any subject data developed under this Agreement, whether or not a
copyright has been obtained; and
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 furnished 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.
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(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 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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unperformed services. if the termination is for failure of Professional to fulfill the contract
obligations after the cure period, 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 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 will 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 falls to remedy to the MPO's satisfaction the breach or
default or any of the terms, covenants, or conditions of this Agreement within thirty (30)
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.
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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 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 fumished 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").
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. Proiect 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.
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17. 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.
18. Personal Services. it is understood that 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.
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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:
PACIFIC INTERMEDIA, INC.
NFRT & AQPC
City of Fort Collins
Attn: Michael Clark
Attn: John Daggett
Purchasing Division
5711 SW Hood Avenue #200
235 Mathews St.
P.O. Box 580
Portland, OR 97239-3715
Fort Collins, CO 80524
Ft Collins, CO 80522
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 Reguirements. 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 Vl 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;
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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.
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 (MPO)
C11"alipan,'ExecufIve Director
PROFESSIONAL:
By: �)
Title: PQc,=(,'c
/ 1131OG
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was subscribed, sworn to and acknowledged before
me this day of 2005, by [as
Of .1
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
PACIFIC INTERMEDIA, INC.
DATED: January 1, 2006
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
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
User
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: By -
Date: Date:
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EXHIBIT B
COSTS AND FEE SCHEDULE - INITIAL YEAR OF CONTRACT
Hour and cost estimates are based on assumed task complexity levels during
work order communication. If, during Discovery, project complexity is found to be
lower or higher, the budget and/or project scope shall be adjusted accordingly
based on Client direction.
Capital Costs It Is assumed that the Client shall assume capital casts for
the production and staging environments.
Additional Services Pacific Intermedia is able to provide the following additional
services, if desired by Client.
- Marketing and Branding Expertise
- Third -party Focus Group Testing
- Production Platform Build Out
- Copywriting
Fee Schedule Project Management $100 Hr
Information/Systems Architect $125 Hr
Database Engineer $100 Hr
Graphic/FLASH Designer $ 90 Hr
Programmer $100 Hr
Content/Copy $ 85 Hr
HTML Production $ 85 Hr
Travel Expense Pacific Intermedia, Inc. has experience in managing
distance -projects. Our method is to handle work primarily
off -site in Oregon, bringing technical and management
support on -site as needed.
To streamline distance communication and ensure
adherence to the travel budget, Pacific Intermedia, upon
approval of the Client, will install an IP or ISDN video
conferencing link and Web Conferencing System. Pacific
Intermedia shall supply all equipment.
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