HomeMy WebLinkAbout369918 E P S ECONOMIC PLANNING SYSTEMS - CONTRACT - CONTRACT - 6604200PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and between
THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to
as the "City" and Economic & Planning Systems, Inc., hereinafter referred to as "Professional'.
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed
by and between the parties hereto as follows:
Scope of Services. The Professional agrees to provide services in accordance
with the scope of services attached hereto as Exhibit "A", consisting of two (2) pages, and
incorporated herein by this reference.
2. The Work Schedule. The services to be performed pursuant to this Agreement
shall be performed in accordance with the Budget and Work Schedule attached hereto as
Exhibit "B", consisting of one (1) page, and incorporated herein by this reference.
Contract Period. This Agreement shall commence June 21, 2006 and shall continue in
full force and effect until September 21, 2006, unless sooner terminated as herein provided.
Time is of the essence. Any extensions of any time limit must be agreed upon in writing by the
parties hereto.
3. Early Termination by City. Notwithstanding the time periods contained herein,
the City may terminate this Agreement at any time without cause by providing written notice of
termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to
the termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and
sent to the following addresses:
Standard Professional Services Agreement- January, 2005
EXHIBIT "C
TO MAINTAIN CONFIDENTIALITY OF TAX RECORDS
IN CONSIDERATION OF the mutual covenants, agreement and provisions herein
contained, the parties hereto covenant and agree as follows:
1. Confidential Nature of Tax Records. The Consultant hereby acknowledges
that the tax records obtained from the City are confidential and that the disclosure
of such records by the Consultant to third parties constitutes a violation of Section
2-568, Section 25-166 and 25-264 of the Code of the City of Fort Collins and
grounds for the immediate termination of the Consultant's contractual relationship
with the City.
2. Access to Tax Records. Except as otherwise expressly provided for in this
Agreement, the Consultant shall not duplicate or distribute any of the City's tax
records. The Consultant shall not use the City's tax records to obtain any
economic or other benefit for itself, or any third party, except as specifically
authorized by the City. The Consultant further agrees that only those of its
employees who must have access to the City's tax records in order to fulfill the
Consultant's obligations under this Agreement for the purpose of developing an
improved methodology for tracking annual city revenue changes shall be afforded
access to such records. Each such employee shall be informed by the Consultant
of the existence of the Consultant's agreement to maintain the confidentiality of
the City's tax records and shall agree to be bound by and to comply with the
provisions of this Agreement regarding the terms and conditions of the receipt of
such records. Each such employee shall further receive a copy of this section of
the Agreement and shall execute the Acknowledgement set forth below (the
"Acknowledgement"). One copy of each such Acknowledgement and Exhibit C
shall be provided to the City for its records. Furthermore, all tax records supplied
to the Consultant pursuant to the Professional Services Agreement will be returned
to the City.
3. Disclosure Requests. In the event the Consultant is made a party or
threatened to be made a party, or is involved in any action, suit, or proceedings,
whether civil, criminal, investigative, or appellate, and in connection therewith is
requested or required to disclose (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar process),
or wish to disclose any portion of the tax records supplied to the Consultant by the
City under this Agreement, the Consultant agrees to (i) provide the City with
prompt notice of the existence, terms, and circumstances surrounding such a
request, (ii) consult with the City on the advisability of taking legally available steps
to resist or narrow such request, and (iii) if disclosure of such information is
required by others or is sought by the Consultant, exercise best efforts to obtain a
protective order or other reliable assurance that confidential treatment will be
Standard Professional Services Agreement- January, 2005
afforded to the City's tax records. The Consultant further agrees that, if in the
absence of a protective order or the receipt of a waiver of the Consultant's
compliance with the provisions of this section, the Consultant is nonetheless, in
the opinion of the Consultant's legal counsel, compelled, notwithstanding this
Agreement, to disclose any portion of the City's tax records to anyone or else
stand liable for contempt or suffer censure or penalty, the consultant may disclose
such information to such tribunal without liability hereunder.
4. Remedies. The Consultant hereby acknowledges that strict compliance with
all of the terms and conditions set forth in this section is necessary to preserve the
confidentiality of the City's tax records and that a breach by the Consultant, or any
of its agents or employees, of any of the terms and conditions set forth in this
section may result in damage to the City. In the event of any such breach, the
City shall be entitled, in addition to damages and any other rights and remedies
which it may have at law or in equity, to have an injunction issued by a court of
competent jurisdiction enjoining the Consultant and any other person involved in
such breach from the continuation thereof.
5. Indemnification. In addition to the foregoing, the Consultant agrees to
indemnify, defend and hold harmless the City, its elected and appointed officials,
employees, representatives, and agents from and against any and all claims, suits,
actions, damages, liability, costs, expenses and losses, caused by, resulting from,
arising out of, or occurring in connection with the possession and use of the City's
tax records, or by reason of any breach of this section of the Agreement, by the
Consultant, its agents or employees, including, without limitation, reasonable
attorney's fees and costs, and costs of investigation and defense of the City, its
officials, agents, representatives, and employees with respect to any such claims,
suits, actions, damages, liability, costs, expenses and losses to have results from
the negligence or willful misconduct of the Consultant.
ACKNOWLEDGEMENT
I, the undersigned, hereby acknowledge that I have read Exhibit C of this
Agreement and specifically Section Two (2), Access to Tax Records. I agree to be
bound by and comply with the provisions of the Confidentiality Agreement and to
maintain the confidentiality of the City's tax records.
y:
0J
-
Wa W F. OM
Title: Managing MxW
Date: Z16 /O 6
Standard Professional Services Agreement- January, 2005
EXHIBIT "C"
TO MAINTAIN CONFIDENTIALITY OF TAX RECORDS
IN CONSIDERATION OF the mutual covenants, agreement and provisions herein
contained, the parties hereto covenant and agree as follows:
1 . Confidential Nature of Tax Records. The Consultant hereby acknowledges that
the tax records obtained from the City are confidential and that the disclosure of such
records by the Consultant to third parties constitutes a violation of Section 2-568,
Section 25-166 and 25-264 of the Code of the City of Fort Collins and grounds for the
immediate termination of the Consultant's contractual relationship with the City.
2. Access to Tax Records. Except as otherwise expressly provided for in this
Agreement, the Consultant shall not duplicate or distribute any of the City's tax
records. The Consultant shall not use the City's tax records to obtain any economic
or other benefit for itself, or any third party, except as specifically authorized by the
City. The Consultant further agrees that only those of its employees who must have
access to the City's tax records in order to fulfill the Consultant's obligations under
this Agreement for the purpose of developing an improved methodology for tracking annual
city revenue changes shall be afforded access to such records. Each such employee
shall be informed by the Consultant of the existence of the Consultant's agreement to
maintain the confidentiality of the City's tax records and shall agree to be bound by
and to comply with the provisions of this Agreement regarding the terms and
conditions of the receipt of such records. Each such employee shall further receive a
copy of this section of the Agreement and shall execute the Acknowledgement set
forth below (the "Acknowledgement"). One copy of each such Acknowledgement and
Exhibit C shall be provided to the City for its records. Furthermore, all tax records
supplied to the Consultant pursuant to the Professional Services Agreement will be
returned to the City.
3. Disclosure Requests. In the event the Consultant is made a party or threatened
to be made a party, or is involved in any action, suit, or proceedings, whether civil,
criminal, investigative, or appellate, and in connection therewith is requested or
required to disclose (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process), or wish to
disclose any portion of the tax records supplied to the Consultant by the City under
this Agreement, the Consultant agrees to (i) provide the City with prompt notice of the
existence, terms, and circumstances surrounding such a request, (ii) consult with the
City on the advisability of taking legally available steps to resist or narrow such
request, and (iii) if disclosure of such information is required by others or is sought by
the Consultant, exercise best efforts to obtain a protective order or other reliable
assurance that confidential treatment will be afforded to the City's tax records. The
Consultant further agrees that, if in the absence of a protective order or the receipt of
a waiver of the Consultant's compliance with the provisions of this section, the
Consultant is nonetheless, in the opinion of the Consultant's legal counsel, compelled,
9
Standard Professional Services Agreement- January, 2005
notwithstanding this Agreement, to disclose any portion of the City's tax records to
anyone or else stand liable for contempt or suffer censure or penalty, the consultant
may disclose such information to such tribunal without liability hereunder.
4. Remedies. The Consultant hereby acknowledges that strict compliance with all
of the terms and conditions set forth in this section is necessary to preserve the
confidentiality of the City's tax records and that a breach by the Consultant, or any of
its agents or employees, of any of the terms and conditions set forth in this section
may result in damage to the City. In the event of any such breach, the City shall be
entitled, in addition to damages and any other rights and remedies which it may have
at law or in equity, to have an injunction issued by a court of competent jurisdiction
enjoining the Consultant and any other person involved in such breach from the
continuation thereof.
5. Indemnification. In addition to the foregoing, the Consultant agrees to
indemnify, defend and hold harmless the City, its elected and appointed officials,
employees, representatives, and agents from and against any and all claims, suits,
actions, damages, liability, costs, expenses and losses, caused by, resulting from,
arising out of, or occurring in connection with the possession and use of the City's tax
records, or by reason of any breach of this section of the Agreement, by the
Consultant, its agents or employees, including, without limitation, reasonable
attorney's fees and costs, and costs of investigation and defense of the City, its
officials, agents, representatives, and employees with respect to any such claims,
suits, actions, damages, liability, costs, expenses and losses to have results from the
negligence or willful misconduct of the Consultant.
ACKNOWLEDGEMENT
I, the undersigned, hereby acknowledge that I have read Exhibit C of this Agreement
and specifically Section Two (2), Access to Tax Records. I agree to be bound by and
comply with the provisions of the Confidentiality Agreement and to maintain the
confidentiality of the City's tax records.
92
Title:
Date:
10
Standard Professional Services Agreement- January, 2005
Professional:
City:
With Copy to:
Economic & Planning
City of Fort Collins
City of Fort Collins, Purchasing
Systems, Inc.
City Managers Office
PO Box 580
Attn: Daniel Guimond
300 LaPorte Ave
Fort Collins, CO 80522
730 171 St. Suite 630
Fort Collins, CO 80521
Denver, CO 80202-3511
In the event of any such early termination by the City, the Professional shall be paid for services
rendered prior to the date of termination, subject only to the satisfactory performance of the
Professional's obligations under this Agreement. Such payment shall be the Professional's sole
right and remedy for such termination.
4. Design, Project Indemnity and Insurance Responsibility. The 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. The Professional
shall indemnify, save and hold harmless the City, its officers and employees in accordance with
Colorado law, from all damages whatsoever claimed by third parties against the City; and for
the City's costs and reasonable attorneys fees, arising directly or indirectly out of the
Professional's negligent performance of any of the services furnished under this Agreement.
The 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.
6. Compensation. In consideration of the services to be performed pursuant to
this Agreement, the City agrees to pay Professional on a time and reimbursable direct cost
basis in accordance with the Budget and Work Schedule attached hereto as Exhibit "B",
consisting of one (1) page, and incorporated herein by this reference, with maximum
compensation (for both Professional's time and reimbursable direct costs) not to exceed Thirty
Five Thousand Sixty Dollars ($35,060)
Monthly partial payments based upon the
Standard Professional Services Agreement- January, 2005
Professional's billings and itemized statements of reimbursable direct costs are permissible.
The amounts of all such partial payments shall be based upon the Professional's City -verified
progress in completing the services to be performed pursuant hereto and upon the City's
approval of the Professional's reimbursable direct costs. Final payment shall be made following
acceptance of the work by the City. Upon final payment, all designs, plans, reports,
specifications, drawings and other services rendered by the Professional shall become the sole
property of the City.
7. City Representative. The City will 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
8. Monthly Report. Commencing thirty (30) days after the date of execution of this
Agreement and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of
Services, Work Schedule, and other material information. Failure to provide any required
monthly report may, at the option of the City, suspend the processing of any partial payment
request.
9. Independent Contractor. The services to be performed by Professional are
those of an independent contractor and not of an employee of the City of Fort Collins. The City
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.
10. Personal Services. It is understood that the City enters into this Agreement
based on the special abilities of the Professional and that this Agreement shall be considered
as an agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under this Agreement without the prior written
Standard Professional Services Agreement- January, 2005
consent of the City.
11. Acceptance Not Waiver. The City'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 City'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 City under this Agreement.
12. 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 parry may be declared in default.
13. Remedies. In the event a party has been declared in default, such defaulting
party shall be allowed a period of ten (10) days within which to cure said default. In the event
the default remains uncorrected, the party declaring default may elect to (a) terminate the
Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting
party commences legal or equitable actions against the defaulting party, the defaulting party
shall be liable to the non -defaulting party for the non -defaulting parry's reasonable attorney fees
and costs incurred because of the default.
14. Binding Effect. This writing, 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.
15. Law/Severability. The laws of the State of Colorado shall govern the
construction, interpretation, execution and enforcement of this Agreement. 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.
Standard Professional Services Agreement- January, 2005
16. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit "C, consisting of one (1) page,
attached hereto and incorporated herein by this reference.
Standard Professional Services Agreement- January, 2005
THE CITY OF FORT COLLINS, COLORADO
By: QD-,. Q-nk.��o bV,
s B. O'Neill II, CPPO, FNIGP
Director Purchasing / & Risk Management
DATE: �10 / O 6
Economic & Planning Systems, Inc.
By:
,valter F. KWW
Title: ivianaging ftXod
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:
ATTEST:
A c� /
.� (Corporate Seal)
Corporate Secretary
Standard Professional Services Agreement- January, 2005
Exhibit "A"
SCOPE
EPS will work with the City Manager's office and Finance Department staff to develop an
improved methodology for tracking annual city revenue changes. The existing revenue
forecasting approach relies on statewide income data and is not sensitive to changes in local
retail spending and building activity which have the greatest impact on general fund revenues.
The proposed changes would focus on utilizing more locally sensitive indicators such as the top
50 to 100 tax generators and changes in local and regional retail competition. EPS would also
review and evaluate revenue trends for other major revenues sources to determine if other
factors should be incorporated into the revenue forecast model.
An immediate short term need is to revise the 2006 (3'd and 4d' quarters) and 2007 forecasts for
input to the City's annual budget process. This information needs to be available by July 25,
2006. To complete this analysis, EPS will focus on the review of current returns by the top 50
tax generators. We will also update and revise our market based retail inflow -outflow model
that estimates retail sales flows by major store category to focus on short term impacts of
changes in retail competition within the city trade area.
A second phase of the project would develop a broader revenue forecasting model by analyzing
other factors affecting revenues such as building permit activity and employment growth and
growth by sector. The retail market model may also be refined to incorporate additional trend
data to provide a more accurate predictor of sales tax changes over a one to three year time
period.
Scope of Work
Task 1: Project Initiation
EPS will meet with City staff to review the scope and to collect needed data and background
reports. Requested data will include budget and actual revenue for the last three years, sales
tax returns for the 100 largest generators and sales tax data for all stores for 2005 and the first
two quarters of 2006. The existing revenue forecasting information will also be collected for
comparison purposes. EPS will utilize the City's confidential tax data under a confidentiality
agreement already in effect. Data on changes in the population, households, and housing unit
growth will also be collected for Fort Collins as well as other cities in the trade area.
Task 2: Trade Area Economic Base
EPS will update data on local population, households, housing units, employment and income
trends and conditions for the communities in the Fort Collins trade area from 2004 to 2006.
These primary economic indicators will impact short term growth in local sales and use tax and
property tax revenue streams. We will also compile data on changes in the regional retail store
inventor for the trade area that includes Fort Collins, Loveland, Windsor, Wellington, and
unincorporated Larimer County.
Task 3: Short Term Revenue Forecasts
EPS will review and analyze City revenues by source over the 2004 to 2006 (2nd quarter) time
period. We will also analyze monthly sales tax returns for the top 100 sales tax generators in
the City for the same time period. EPS will also analyze retail sales trends over the 2004 to
2006 time period by individual store record and by major store grouping. Based on trend data,
Standard Professional Services Agreement- January, 2005
and considering changes in the trade area, as well as other pertinent local and regional
economic factors, EPS will estimate the major revenues by type for the second half of 2006 and
for 2007.
Task 4: Retail Sales Model Refinement
EPS will update its existing retail sales flow model previously calibrated for the Bayer analysis
on 2004 sales tax data to quantify total City retail sales inflow and outflows by major store
category for 2005 and 2006. Retail sales will be estimated for sales to residents and inflows
from the surrounding trade area. Retail expenditures will be estimated by market segment
including local expenditures and outflow (leakage) to retail centers outside of the City. These
estimates will be made accounting for the change in retail sales patterns due to new retail
developments within and outside the city including the development of the Promenade Shops at
Centerra and Lowe's in Loveland.
Task 5: Retail Sales Forecasts
Based on the previous analysis of short term revenue trends, as well as the retail model update,
EPS will forecast annual retail sales tax revenues by major store grouping for a three year
forecast period from 2007 through 2009. The retail sales analysis will be market based
considering changes in local and regional competition. EPS will develop a model structure that
can be updated on an annual basis to account for additional changes in the local and regional
store inventory as well as growth in trade area households and income by location.
Task 6: Other Revenues Indicators
In addition to the retail sales forecasting model, EPS will evaluate the City budget by major
revenue source to determine other factors influencing major revenue sources. We will focus on
the sectors such as manufacturing and utilities paying sales and use tax. Data such as
employment change and housing unit growth will be analyzed to determine if there are relatively
simple indicators that can be used to help track and forecast revenues changes. EPS will then
create a simple model to track changes in the selected indicators as an input to the revenue
forecasts.
Task 7: Reports
EPS will prepare a concise decision level memorandum report summarizing the analysis of
short term revenue forecasts. The second phase more detailed analysis of retail market trends
and the development of a three year revenue model will be completed over a three month time
frame and result in a report and instructional manual summarizing the analysis and forecasts
and recommendations for tracking future revenues.
Standard Professional Services Agreement- January, 2005
EXHIBIT "B"
Budget and Work Schedule
EPS proposes to initiate work on a time and materials basis with an initial upset limit of $35,060
for Tasks 1-7. The approximate allocation of time by task and staff level is shown in Table 1.
The short term revenue forecasts (Tasks 1 and 2) will be completed by July 21, 2006. The
second phase of the project will be completed within a 90 day time period.
Table 1
Estimated Hours by Task
Fort Collins Revenue Forecasts
Description
Labor
Task 1: Project Initiation
Task 2: Trade Area Economic Base
Task 3: Short Term Revenue Forecasts
Task 4: Retail Sales Model Refinement
Task 5: Retail Sales Forecasts
Task 6: Other Revenue Indicators
Task 7: Reports
Total Hours
Hourly Rate
Dollars by Person
Expenses
Local Travel
Miscellaneous Expenses
Total Expenses
Total Labor and Expenses
Project Research/ Total Total
Manager Associate Production Hours Cost
8
16
16
40
$4,160
4
8
16
28
$2,560
8
40
24
72
$7,040
8
32
24
64
$6,240
8
24
24
56
$5,440
4
16
16
36
$3,360
16
16
16
48
$5,760
56
152
136
344
$200
$100
$60
$11,200
$15,200
$8,160
$34,560
EPS will bill the City for actual hours worked and materials used, not to exceed $35,060.
$250
250
$500
$35,060
Standard Professional Services Agreement- January, 2005