HomeMy WebLinkAboutRRC ASSOCIATES INC - CONTRACT - RFP - 7059 HOTEL MARKET CONSULTING SERVICESPROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered
into on this 1i,, day of _0e _ew&er' , 200q , by and between THE FORT COLLINS,
COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politic (the
"DDA"), and STR TOUCHSTONE, INC., dba RRC ASSOCIATES, INC. (the "Professional").
WITNESSETH:
WHEREAS, pursuant to 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 one (1) year, 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," consisting of nineteen (19) pages, and
incorporated herein by this reference.
3. The Work Schedule. The services to be performed by the Professional pursuant to
this Agreement shall be performed in accordance with the, schedule contained on page nineteen
(19) of the Scope of Services (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 on page eighteen (18) of the Scope of Services up to a
maximum amount of One Hundred Twenty-five Thousand Dollars and 0/100 ($125,000.00).
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contained in an attached and incorporated document.
IN 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 Spencer Ch •person
ATTEST:
By:
Bill Sears, Secretary
PROFESSIONAL: STR TOUCHSTONE, INC., dba
RRC ASSOCIATES, INC.
By: . ,,�(2'1'j, e
6
Name: k ui�'-A v L G n^ 1 L
Title: -,tIJ�
ATTEST:
By: (Corporate Seal)
Corporate Secretary, 8TRfouchstone, Inc.
PSA.RRC Inc.Hotel Consultin,:Revised.11.23.09 10
5. DDA Representative. The DDA 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 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 by the DDA in writing prior to commencing any such work. At the time of
execution hereof, the DDA has approved of only those subconsultants identified in pages three (3)
through eight (8) of the Scope of Services. The DDA shall have the right -to require, prior to final
payment to the Professional, the submission of lien waivers, in a form reasonably acceptable to the
DDA, by any such subconsultants.
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.
8. 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. 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.
10. Deliverables. Deliverables identified in the Scope of Services shall be delivered to
the DDA in accordance with the schedule contained on page nineteen (19) of the Scope of
Services.
11. Monthly Report. Commencing thirty (30) days after the date of execution of this
,�reement, and continuing every thirty (30) days thereafter for the term hereof, the Professional
provide to the DDA Representative a report on of the status of the work with respect to the
"'Services, Work Schedule and other material information. Failure to provide any required
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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. The Professional shall be responsible for compensating any such subconsultants
for work performed hereunder out of the payments provided by the DDA to the Professional under
Section 4 hereof.
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.
16. 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:
A. Employee Insurance. The Professional shall provide for all of its employees
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engaged in work performed under this Agreement:
i. Workers' Compensation. In accordance with the laws of the State of
Colorado.
ii. Employer's Liability Insurance. In an amount not less than One
Hundred Thousand Dollars ($100,000.00) per occurrence, Five
Hundred Thousand Dollars ($500,000.00) aggregate, for each
employee.
B. Liability Insurance. The Professional shall provide the following liability
insurance coverage:
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."
ii. Professional Liability Insurance. Professional liability insurance
covering errors and omissions of the Professional. Amount of coverage
shall be not less than One Million Dollars ($1,000,000.00).
iii. Certificates 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
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policies,
C. 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 tinder this Agreement by such subconsultant, which liability is not
covered by such subconsultant's insurance.
D. 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
policies from payments due, or which may become due, to the Professional.
17. 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,
18. 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. Additionally, the Professional shall not, without the prior written
consent of the DDA, utilize any sub -consultants for any work to be performed pursuant this
Agreement other than those persons or entities identified in the Scope of Services and only in the
capacity identified for such persons or entities in the Scope of Services.
19. 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.
20. 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 refitse to
perform in accordance with any term or provision of this Agreement, such party may be declared
in default.
2L 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)
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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 from
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.
22. Acceltance 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.
23. 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 firll force and effect.
24. 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 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 24 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.
25. Notification of Claim. 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 right, 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.
26. 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
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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 inailing or delivering of notices shall be as follows:
If to the Professional: RRC Associates, Inc.
Attn: Nolan Rosall
4940 Pearl East Circle, Suite 103
Boulder, CO 80301
If to the DDA: The Fort Collins, Colorado
Downtown Development Authority
Attn: Matt Robenalt, 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
Notice of a change of address of a party shall be given in the same manner as all other
notices as hereinabove provided.
27. 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.
28. Subject 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.
29. 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.
30. Governing Law & Venue. The laws of the State of Colorado shall govern the
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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.
31. 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 herefrom.
32. 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.
33. Prohibition Against Employing Illegal Aliens. Pursuant to Colorado Revised
Statutes ("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
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) C.R.S. 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
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Professional shall:
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 33 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 terminate this
Agreement. If this Agreement is so terminated, the Professional shall be liable for
actual and consequential damages to the DDA arising out of the Professional's
violation of C.R.S. § 8-17.5-102.
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.
34. 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.
35. 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.
36. 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
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