HomeMy WebLinkAbout468578 MARKET VENTURES, INC. - CONTRACT - RFP - 7092 COMMUNITY MARKETPLACE FEASIBILITY ANALYSISC� 1 -2,8'
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PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered
into on this �Q5 day of January, 2010, by and between THE FORT COLLINS, COLORADO,
DOWNTOWNDEVEbOPMEN-T-A--J-THORI-T-Y-,-a-bodycorporate-and politic (the"DDA")j and ----------
MARKET VENTURES, INC., a Maine corporation (the "Professional").
WITNESSETH:
WHEREAS, pursuant to Colorado Revised Statutes ("C.R.S.") § 31-25-807 the DDA is
empowered to make and enter into all contracts which are necessary or incidental to the exercise
of its powers and performance of its duties;
WHEREAS, the DDA desired that the City of Fort Collins (the "City") assist the DDA
with the contract procurement process for this project, and the City agreed to provide such
services for and on behalf of the DDA;
WHEREAS, upon completion of such process, the City and the DDA determined that the
Professional should be awarded this Agreement;
WHEREAS, the DDA and the Professional desire to enter this Agreement for the
provision of services by the Professional to the DDA, as hereinafter described; and
WHEREAS, such services rendered by the Professional will advance the statutory
mission of the DDA.
NOW, THEREFORE, in consideration of the mutual covenants and obligations herein
expressed; the receipt and adequacy of which are hereby acknowledged, it is agreed by and
between the parties hereto as follows:
1. Contract Period. This Agreement shall commence upon execution hereof, and
shall continue in full force and effect for a period of six (6) months, unless sooner terminated as
hereinafter provided.
2. Scope of Services. The Professional agrees to provide services in accordance
with the scope of services attached hereto as Exhibit A and incorporated herein by this reference
(the "Scope of Services").
3. The Work Schedule. The Professional shall commence performance of the Scope
of Services upon execution hereof and shall complete performance of the Scope of Services on
or before June 30, 2010 (the "Work Schedule").
4. Compensation. In consideration of the Professional's performance hereunder,
the DDA agrees to pay the Professional on a time and reimbursable direct cost basis in
accordance with the budget allocation contained in Exhibit B, attached hereto and incorporated
herein by this reference, up to a maximum amount of Seventy-nine Thousand Nine Hundred
DDATSA.Market Ventures Inc.01.15.09
THE PROFESSIONAL:
MARKET VENTURES, INC. a a1 orporation
By:
Name: Theodore Spitzer, President
ATTEST:
i
_ (Corporate Seal)
Coi orate Secre
DDATSA.Market Ventures Ine.01.15.09 10
Exhibit A
To
Market Ventures, Inc., PSA
Scope of Services
Fort Collins Community Marketplace Feasibility Study
1. Project concept analysis
a. Ivey informant interviews. Working with the client, the consultant team will identify key
informants whose input can provide relevant background information and who can help guide the
project. These key informants might include project partners, city officials, leaders among the
region's creative food economy (such as restaurateurs, retailers, culinary educators, and food
professionals and advocates), and farmers and managers from the area's farmers' markets.
b. Materials review and summary. The consultant team will review all available project
documentation and reports and provide the DDA with a summary analysis (5 page maximum) that
identifies strengths, weaknesses, opportunities, and threats (SWOT) to the proposed Community
Marketplace. The consultant team will identify additional steps of financial feasibility, if necessary.
2. Site analysis
a. Site suitability. The consultant team will evaluate the DDA-owned former Elks building site for its
retail character traits, parking availability, space for an outdoor farmers' market, and delivery vehicle
access, as well as for visibility, context of adjacent uses, ability to accommodate the development
program, linkage to public transit, and potential to positively impact the downtown. The consultant
team will make a determination if this site can accommodate the building program and meet the
project goals.
b. Site identification (optional). If the Elks building site is deemed unsatisfactory, the consultant team
will identify and evaluate other downtown sites for availability and suitability. These sites will be
within the Fort Collins CBD and accessible by foot. This analysis will consider the key success
factors for public markets: visibility, accessibility by car, foot and public transportation, availability
of parking, size, cost, potential to accomplish the Marketplace's sustaitiabiiity goals, and opportunity
to revitalize nearby properties. The consultant team will seek to identify up to three alternate sites
and present the'pros and cons of each.
c. Site acquisition and development costs. The consultant team will estimate site acquisition and
order -of -magnitude project development costs based on our experience with similar projects in other
cities and local conditions. This analysis will include property acquisition, hard construction costs,
and soft costs including professional fees, tenant allowances, project management/leasing,
capital/equipment, marketing, and operating reserve.
3. Demand analysis
a. Consumer focus groups. In order to explore consumer interest in the proposed Community
Marketplace, MVI will conduct up to three focus groups with representative customers, including
downtown residents, downtown employees, and area residents. These focus groups will explore
current shopping patterns, understanding of the Community Marketplace concept, reaction to
different public market forms, and identificatilon of key drivers that influence their shopping
decisions. MVI will work with the DDA to identify and recruit focus group participants. MVI will
design the focus group questions, conduct the groups, review the results, and draw conclusions.
b. Sales potential. MVI will determine trade areas and identify and segment potential customers for
the public market. MVI will then utilize its proprietary capture rate methodology for determining
potential sales in a public market environment, using estimates for annual food and beverage
expenditures in the market's trade areas. This methodology has been refined over many years and
has proven to be quite accurate in projecting sales potential.
c. Competitive analysis. The MVI team will research existing and proposed grocery and flesh food
options within the downtown and nearby neighborhoods, assessing the range of products, quality of
the shopping experience, quantity and quality of local foods, access and parking, etc.
4. Tenant mix
a. Vendor interviews. MVI will work with the planning team to identify potential vendors for the
Community Marketplace. MVI will conduct in -person or telephone interviews with 10-15 potential
vendors to explore their interest in the proposed market, their ideas or concerns about the market,
and how they would like to participate.
b. Farmer focus groups. Farmer focus groups will explore the interest among regional farmers and
food producers to participate in the Community Marketplace by presenting the various ways that
farmers can play a role in the project. These ways might include: full time vendor, seasonal or day
stall vendor, outdoor farmers' market participant, supplier to market vendors; interest will also be
explored in the role of the Community Marketplace to encourage agri-tourism. MVI will work with
the planning team to identify and recruit a range of fanners and food producers to participate in up to
three focus groups. MVI will design the focus group questions, conduct the groups, review the
results, and draw conclusions.
c. Tenant mix models. Based on the results of the market research, the completed program feasibility
studies, and relevant experience with other public markets, MVI will model a variety of tenant mixes
with revenue forecasts and operating expenses. Profiles of each proposed market business will be
created with square footage requirements and descriptions of the products they will offer. Other
programmatic elements will be determined, such as common area seating, offices, meeting rooms,
demonstration kitchen, restrooms, etc.
d. Vendor pro forma. One year operating statements will be prepared for each proposed permanent
vendor, including estimated sales, cost of goods, labor estimates based on local wages, and other
typical expenses facing food retailers. These will be used to determine potential rent levels,
including base and percentage rents and common area and maintenance (CAM) allocations, and
analyze profitability. Income estimates will also be created for the seasonal and day vendors, and
rent levels analyzed.
5. Financial analysis
a. Management and marketing. Based on national models and experience, an initial staffing plan for
the market will be recommended. Key management responsibilities will be outlined and the cost of
management will be established based on local wage rates. A yearly marketing plan will be outlined
with cost estimates.
b. Operations pro forma. A five year operating statement for the Community Marketplace will be
prepared, including rental income fiom each income source and estimates for operating expenses
such as personnel, marketing, waste hauling, utilities, insurance, etc., reflecting local conditions.
Income and expenses will be analyzed to maximize cash flow. Operating costs will be compared to
similar public markets in other communities.
2
c. Development estimate. Based on recent experience developing public markets, an initial estimate of
development budget will be prepared, reflecting typical square footage construction costs. Start-up
costs will be identified.
d. Gap finance analysis. Operating models will be created with and without debt financing. The need
for long-term subsidy will be explored.
e. Finance plan options and strategy. Options for development funding will be explored, including
examples of recently developed public markets. The consultant team will recommend a development
strategy that effectively leverages public finance tools available to the DDA and the City, and
maximizes the utilization of federal funding sources. _
6. Economic impact analysis.
• Using RIMS II multipliers from the Bureau of Economic Analysis for the study area, MVI will
estimate the economic impact of the Community Marketplace, including both direct benefits and
multiplier effects. Numbers of new businesses and jobs will be estimated, as well as sales of locally
produced food.
7. Report and presentation
a. Report. A report will be prepared that incorporates the findings, analysis, and recommendations,
including an assessment of the project's feasibility based on the critical factors of site, physical
environment, consumer demand, management, and availability and interest of local vendors. The
report will be submitted initially in draft form. MVI will prepare a final report that addresses draft
comments.
b. Presentation. MVI will present the findings to the local plaruring team and make recommendations for
future steps.
8. Business plan*
a. Management. The consultant team will evaluate the planning team's work related to management
structures that serve the entire facility. MVI will make suggestions for refining the conclusions
regarding management approach and organizational structure.
b. Business plan samples. The consultant team will provide examples of business plans from similar
start-up as well as established facilities.
c. Business plan outline. MVI will prepare a business plan outline that can be used by the local
planning team to guide next planning and development steps. Critical decision points will be
identified.
d. Business plan preparation. The consultant team will prepare the business plan for the facility once
the ownership and management structure has been determined by the local planning team.
* Phase 2, to be determined following conclusion
Exhibit B
To
Market Ventures, Inc., PSA
Budget
LABOR
Project concept analysis
Site analysis - Part 1
Site analysis - Part 2 (f needed)
Demand analysis
Tenant mix
Financial analysis
Economic impact analysis
business plan (Phase 2 - not budgeted)
Reports and presentations
Subtotal Labor
EXPENSES Number
Tra%ei (Portland - Fort Collins) 4
Tra%el (Newark - Fort Collins) 1
Per diem 15
Postage, telephone
Data
Supplies, presentation materials
Subtotal Expenses
TOTAL
$
5,550
$
16,800
$
9,600
$
9,260
$
9,250
$
9,585
$
4,625
$
8,140
$
72,800
Rate
$ 525.00 $
$ 400.00 $
$ 225.00 $
$
C,
2,100
400
3,375
450
600
200
7,125
Twenty-five Dollars and 0/100 ($79,925.00) for both the Professional's time and direct
reimbursable costs.
5. DDA Representative. The DDA shall designate, prior to the Professional's
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 this Agreement (the "DDA
Representative"). All communications should be directed to the DDA Representative.
6. Use of Subconsultants. All subconsultants that will be performing work
hereunder must be approved in writing by the DDA prior to commencing any such work.
7. Billing. The Professional shall submit to the DDA detailed monthly invoices
which set forth the following: (1) each service rendered; (2) identity of the party rendering each
service (i.e., the Professional or a subconsultant); (3) the cost of each service rendered by the
Professional or subconsultant; and (4) direct costs eligible for reimbursement hereunder. The
Professional shall include with the invoice sufficient evidence of direct costs it has incurred for
which it seeks reimbursement from the DDA. The Professional's failure to comply with these
requirements may, at the DDA's option, suspend processing of payment requests until the
Professional's invoice is in compliance with said requirements. The DDA shall be obligated to
pay invoices that conform to the requirements contained herein within thirty (30) days of receipt.
S. Early Termination by the DDA. Notwithstanding the term hereof, the DDA shall
have the right to 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 to in writing by the DDA
and the Professional. In the event of any such early termination by the DDA, 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.
9. Limited Role of the City. Standing of the City to Enforce Certain Terms. The
Professional hereby acknowledges that the City's role in this project was and is limited to
contract procurement for and on behalf of the DDA. In recognition thereof, the Professional
agrees that the City shall not be responsible for the performance of any of the DDA's duties or
obligations hereunder, and shall hold the City harmless in the event of any breach of this
Agreement by the DDA. Furthermore, the parties_ hereto agree that the City shall have standing
under this Agreement, to the same degree as if it was a signatory to this Agreement, to enforce
any right, privilege or benefit herein expressly conferred to the City,
10. Modification of Scope of Services. Changes or additions to the services to be
performed by the Professional under the Scope of Services shall be accomplished by change
order form, which change order form shall be prepared by the DDA on terms mutually agreeable
to the Professional and the DDA. No such changes or additions shall be considered approved,
binding or enforceable until such change order form has been signed by the parties hereto.
11. Monthly Report. Commencing thirty (30) days after the date of execution of this
DDATSA.Market Ventures 1nc.01.15.09
Agreement, and continuing every thirty (30) days thereafter for the term hereof, the Professional
shall provide to the DDA Representative a report on 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 DDA, suspend the processing of any partial
payment request.
12. Coordination, Quality and Accuracy of Services. The Professional shall be
responsible for the coordination of all services between the Professional and its subconsultants.
The Professional shall be responsible for the professional quality, technical accuracy, timely
completion and coordination of all services rendered by the Professional and its subconsultants,
which services shall include, by way of example and without limitation, designs, plans, reports,
specifications, and drawings, and the Professional shall, without additional compensation,
promptly remedy and correct any errors, omissions, or other deficiencies.
13. Independent Contractor. The services the Professional will be performing
hereunder are those of an independent contractor, and not of an agent or employee of the DDA or
the City, nor shall the Professional's employees, agents or subconsultants be considered
employees or agents of the DDA or the City. Neither the DDA nor the City shall be responsible
for withholding any portion of the Professional's compensation hereunder for the payment of
FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
14. Responsibility for Employees and Subconsultants. The Professional shall employ
and contract with only those persons or entities that are properly skilled, accredited, certified,
and/or licensed, as applicable, to safely and competently perform work of the type and scope
which they will be performing. The Professional agrees that it shall be fully responsible for the
acts and omissions of its employees and agents and for those of its subconsultants, and any
persons either directly or indirectly employed by any subconsultants to the same degree as acts
and omissions of persons the Professional directly employs. Nothing contained in this
Agreement shall create any contractual relation between any subconsultant and the DDA or the
City, except to the extent the DDA or the City is indemnified or insured through requirements
upon said subconsultants.
15. Legal Compliance, License and Business Requirements. The Professional shall
hold, in the Professional's name, all licenses necessary- to perform the Scope of Services, and
shall have full authority to do such business in the State of Colorado. The Professional shall at all
times during the term hereof have a designated place of business for making and accepting
communications with or from the DDA. The Professional warrants to the DDA that it shall
exercise the highest degree of competence and care, as determined by accepted standards for
work of a similar nature, in performing.any services or work hereunder, and that such services
and work shall be performed in accordance with all applicable laws.
M. Insurance Requirements. The Professional shall provide and maintain during the
term hereof, at its own expense, and from insurance companies acceptable to the DDA, the
insurance coverage designated hereinafter, and shall require the same of all subconsultants
providing services in connection with this Agreement:
DDATSA.Market Ventures 1ne.01.15.09
A. Liability Insurance, The Professional shall provide the following liability
insurance coverage:
i. Commercial General Liability and Automobile Liability Insurance.
Commercial general liability and commercial automobile liability
insurance as will provide coverage for claims for damages resulting
from bodily injury and death, as well as for claims for property
damage and loss, which may arise directly or indirectly from the
performance of work under this Agreement. Amount of coverage for
commercial general liability shall be not less than One Million Dollars
($1,000,000.00) combined single limits, per occurrence, for bodily
injury, death and property damage or loss. Amount of coverage for
commercial automobile liability shall be not less than One Million
Dollars ($1,000,000.00) combined single limits, per. accident, for
bodily injury, death and property damage or loss, and coverage shall
extend to any vehicle (including owned, hired and non -owned
vehicles) used by, the Professional, or with the consent of the
Professional, in connection with the performance of the Scope of
Services. The DDA shall be named on such policy or polices as an
additional insured with primary coverage. Such policy or policies
shall contain a standard cross -liability endorsement, and shall also
contain substantially the following statement:
"The insurance covered by this Certificate shall not be
canceled or materially altered, without ten (10) days' prior
written notice to the Fort Collins, Colorado, Downtown
Development Authority."
I CertifCates of Insurance. Prior to commencing work hereunder, the
Professional shall furnish the DDA with certificates of insurance for
all liability insurance required herein, which show the type, amount,
class of operations covered, effective dates and date of expiration of
such policies.
B. Subconsultant Liability. In the event that any work performed hereunder is
performed by a Subconsultant, the Professional shall be responsible for any
and all liability resulting from, arising out of or in any way connected with the
work performed under this Agreement by such subconsultant, which liability
is not covered by such subconsultant's insurance.
C. Breach of Insurance Requirements. In the event the Professional breaches any
provision of this Section 16, the DDA shall have the right, but not the
obligation, to take out and maintain throughout the term hereof any insurance
policy or policies necessary to meet the insurance requirements contained
herein, and the DDA shall have the right to deduct the cost of such policy or
DDAYSA.Market Ventures Ine.01.15.09 4
policies from payments due, or which may become due, to the Professional.
17. No Assignment. The Professional acknowledges that the DDA enters into this
Agreement based upon the unique qualifications and special abilities of the Professional and that
this Agreement shall be considered an agreement for personal services. Accordingly, the
Professional shall not have the right, power or authority to assign any of its responsibilities nor
delegate any of its duties arising hereunder to any other individual or entity without the prior
written consent of the DDA.
18. Modification of Agreement. No subsequent addition to this Agreement, or
modification of any term or provision contained herein, shall be valid, binding or enforceable
unless made in writing and signed by the parties hereto.
19. Default. Each and every term and provision contained herein shall be deemed to
be a material element of this Agreement. In the event that either party hereto should fail or
refuse to perform in accordance with any term or provision of this Agreement, such party may be
declared in default.
20. 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 uncured after the ten (10) day period, the party declaring default may elect to: (a)
terminate this Agreement and seek damages; or (b) avail itself of any other remedy provided by
law or at equity. The election by a party of one form of remedy shall not preclude such party
fiom seeking any other remedy provided by law or at equity. In the event of any such uncured
default, the non -defaulting party shall be entitled to and shall be awarded from the defaulting
party all reasonable costs and expenses, including attorneys' fees and other legal expenses,
incurred by the non -defaulting party in connection with such default.
21. Acceptance Not Waiver. Approval by the DDA 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 such work. The
DDA's approval or acceptance of, or payment for, any services performed hereunder shall not be
construed to operate as a waiver of any rights or benefits provided hereunder.
22. Limitation on Waiver of Breach. The failure of either party hereto to insist, in any
one instance or more, upon the performance of any of the duties, obligations, covenants or
conditions of this Agreement, or to exercise any right or privilege herein conferred, shall not be
construed as thereafter waiving any such duties, obligations, covenants, conditions, rights or
privileges, but the same shall continue and remain in Rill force and effect.
23. Indemnification. The Professional shall indemnify, save and hold harmless the
DDA and the City, their officers, directors, members, employees and agents, from and against
any claim, suit, demand, liability, loss, cost, expense or damage, including attorneys' fees,
judgments other legal expenses, resulting from, arising out of or in any way connected with the
Professional's performance hereunder. In any and all claims, suits or demands against the DDA
DDA.PSA.Market Ventures Inc.01.15.09
or the City, or their officers, directors, members, employees and agents, by any employee or
agent of the Professional, or of any the Professional's subconsultants, the indemnification
obligation under this Section 23 shall not be limited in any way by any limitation on the amount
or type of damages, compensation or benefits payable by or for the Professional or any
subconsultant under workers' compensation laws, disability benefit laws or other employee
benefit laws provided by law.
24. Notification of CIaim. The DDA and/or the City shall notify the Professional
within a reasonable time after receiving notice of any claim for which the indemnity provision
contained herein would apply. So long as the Professional promptly and vigorously defends a
claim, the Professional shall have control over the defense and settlement of any such claim;
provided, however, that the Professional must obtain a complete discharge of all DDA and/or
City liability through any such settlement. In the event that the Professional fails to promptly
and vigorously pursue the defense and/or settlement of such claim, the DDA and/or the City shall
have the light, but not the obligation, to assume the defense and settlement thereof, and the
Professional shall be liable for all costs and expenses incurred by the DDA and/or the City in the
pursuit thereof. The DDA and/or the City shall furnish, at the Professional's reasonable request
and expense, information and assistance necessary for such defense.
25. Notice. Any notice required or desired to be given by any party to this Agreement
shall be in writing and may be personally delivered; sent by certified mail, return receipt
requested; or sent by a nationally recognized receipted overnight delivery service, including the
United States Postal Service, United Parcel Service, Federal Express, or Airborne Express, for
earliest delivery the next day. Any such notice shall be deemed to have been given and received
as follows: when personally delivered to the party to whom it is addressed; when mailed, three
delivery (3) days after deposit with the United States Postal Service, postage prepaid; and when
by overnight delivery service, one (1) day after deposit in the custody of the delivery service.
The addresses for the mailing or delivering of notices shall be as follows:
If to the Professional: Market.Venture�, hie. Ted SP,+Ze r'
118 William Street -rSf,+Ze,-@ m ra4 Ven4o-v-J'A ,
Portland, ME 04103
If to the DDA: The Fort Collins, Colorado
Downtown Development Authority
Attn: Executive Director'
19 Old Town Square, Suite 230
Fort Collins, CO 80524
With a copy to: Liley, Rogers & Martell, LLC
Attn: Lucia A. Liley, Esq.
300 S. Howes Street
Fort Collins, CO 80521
DDA.PSA.Market Ventures Inc.01.15.09
Notice of a change of address of a party shall be given in the same manner as all other
notices as hercinabove provided.
26. Work Product. The DDA shall own and retain all right, title and interest in and to
all reports, documents, drawings, specifications, plans, designs, and other information or work
product that are produced, created, developed or made by Professional or its subconsultants in
connection with the Scope of Services (collectively the "Work Product"), and such Work
Product shall be the sole property of the DDA.
27. Subiect to Annual Appropriation. Any financial obligations of the DDA arising
under this Agreement which are payable after the current fiscal year are contingent upon funds
for that purpose being annually appropriated, budgeted and otherwise made available by the City
Council of the City, in its discretion, and/or the Board of the DDA, in its discretion, as
applicable.
28. Successor Entity to the DDA. In the event that the legal existence of the DDA
terminates during the term of this Agreement, it is expressly acknowledged by the parties hereto
that the City is designated the DDA's successor entity, and all rights and obligations of the DDA
set forth herein shall thereupon become the rights and obligations of the City.
29. Governing Law & Venue. The laws of the State of Colorado shall govern the
execution, construction, interpretation and enforcement of this Agreement. Should any party
hereto institute legal suit or action resulting from, arising out of or in any way connected with
this Agreement, it is agreed by the parties hereto that venue for such suit or action shall be proper
and exclusive in the District Court of Larimer County, Colorado.
30. Severability of Terms. If any term or provision contained herein is held to be
illegal, invalid or unenforceable, such term or provision shall be fully severable. This Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable term or provision had
never comprised a part hereof and the remaining terms and provisions contained herein shall
remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable
provision or term, or by its severance herefiom.
31. Attorney Fees. In the event that any litigation is commenced by one party hereto
against the party hereto, which litigation results from, arises out of or is in any way connected
with this Agreement, the court shall award to the substantially prevailing party all reasonable
costs and expenses, including attorneys' fees and other legal expenses.
32. Prohibition Against Employing Illegal Aliens. Pursuant to C.R.S § 8-17.5-101 et
seq., the Professional represents and agrees that:
a. As of the date of execution of this Agreement:
i. The Professional does not knowingly employ or contract with an illegal alien
who will perform work under this Agreement; and
DDAYSA.Market Ventures rne.01.15.09
ii. The Professional will participate in either the e-Verify program created in
Public Law 208, 104th Congress, as amended, and expanded in Public Law
156, 108th Congress, as amended, administered by the United States
Department of Homeland Security (the "e-Verify Program") or the
Department Program, an employment verification program established
pursuant to C.R.S. § 8-17.5-102(5)(c) and administered by the Colorado
Department of Labor and Employment, Division of Labor, in order to
confirm the employment eligibility of all newly hired employees to perform
work under this Agreement.
b. The Professional shall not knowingly employ or contract with an illegal alien to
perform work under this Agreement or knowingly enter into a contract with a
subconsultant who knowingly employs or contracts with an illegal alien to perform
work under this Agreement.
c. The Professional shall not use the e-Verify Program or Department Program
procedures to undertake pre -employment screening of job applicants during the
term hereof.
d. If the Professional obtains actual knowledge that a subconsultant performing
work under this Agreement knowingly employs or contracts with an illegal alien,
the Professional shall
i. Notify such subconsultant and the DDA within three days that the
Professional has actual knowledge that the subconsultant is employing or
contracting with an illegal alien; and
ii. Terminate the subcontract with the subconsultant if within three days of
receiving the notice required pursuant to this Section 32 the subconsultant
does not cease employing or contracting with the illegal alien; except that the
Professional shall not terminate the contract with the subconsultant if during
such three days the subconsultant provides information to establish that the
subconsultant has not knowingly employed or contracted with an illegal
alien.
e. The Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment (hereinafter the "Department")'made in the
course of an investigation that the Department undertakes or is undertaking
pursuant to the authority established in C.R.S. § 8-17.5-102 (5).
f. If the Professional violates any provision of this Agreement pertaining to the
duties imposed by C.R.S § 8-17.5-102 the DDA shall have the right to immediately
terminate this Agreement. If this Agreement is so terminated, the Professional shall
be Iiable for actual and consequential damages to the DDA arising out of the
Professional's violation of C.R.S. § 8-17.5-102.
DDATSA.Market Ventures Tne.01.15.09
g. The DDA will notify the Office of the Secretary of State if the Professional
violates this provision of this Agreement and the DDA terminates the Agreement
for such breach.
33. Sole Source Contract. To the extent this Agreement may be construed to be a
`sole source contract' within the meaning of Sections 15 through 17 of Article XXVIII of the
Colorado Constitution, and to the extent these constitutional provisions have not been enjoined
or invalidated by a court of competent jurisdiction, the requirements and limitations of .these
constitutional provisions are hereby incorporated into this Agreement.
34. Integration/Survival. This contract, which includes this Agreement together with
any exhibits incorporated herein by reference, represents the entire and integrated agreement
between the parties hereto and supersedes all prior negotiations, representations or agreements,
whether written or oral. All conditions, rights, privileges, duties, covenants, warranties and
obligations contained herein shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto, and their respective successors and assigns, and shall remain in full force and
effect and shall survive, to the maximum extent allowable by law, the termination or expiration
of this Agreement.
35. Interpretation. Sections and headings contained herein are for organizational
purposes only and shall not affect the interpretation of this Agreement. The terms and provisions
contained in the body of this Agreement shall always control over conflicting terms and
provisions contained in an attached and incorporated document.
IN i WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year written above.
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY, a
body corporate and politic
By:
Patty Spericc1rfthairperson.
ATTEST:
By:
Brll Sears, Secretary
DDATSA.Morket Ventures Inc.01.15.09