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HomeMy WebLinkAbout472766 DAVE KINDELL - CONTRACT - AGREEMENT MISC - DAVE KINDELLSERVICES 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 Dave Kindell, hereinafter referred to as "Service Provider". W ITNESSETH: 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. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of one (1) page and incorporated herein by this reference. 2. Time of Commencement and Completion of Services The services to be performed pursuant to this Agreement shall be initiated within five (5) days following execution of this Agreement. Services shall be completed no later than July 15, 2010. Time is of the essence. Any extensions of the time limit set forth above must be agreed upon in a writing signed by the parties. 3. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. 4. Early Termination by City/Notice. 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 Service Provider. 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: SA rev03/10 City: Copy to: Service Provider: City of Fort Collins City of Fort Collins Dave Kindell Attn: Purchasing Attn: Mike Freeman 2726 Carina Court PO Box 580 PO Box 580 Walnut Creek, CA 94598 Fort Collins, CO 80522 Fort Collins, CO 80522 (925)899-1661 In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy for such termination. 5. Contract Sum. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay Service Provider a fixed fee in the amount of Thirty Five Thousand Dollars ($35,000.00) plus reimbursable direct costs not to exceed Five Thousand Dollars ($5,000.00). All such.fees and costs shall not exceed Forty Thousand Dollars ($40,000.00). Monthly partial payments based upon the Service Provider's billings and itemized statements are permissible. The amounts of all such partial payments shall be based upon the Service Provider's City -verified progress in completing the services to be performed pursuant hereto and upon the City's approval of the Service Provider's actual reimbursable expenses.' 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 Service Provider shall become the sole property of the City. 6. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests concerning this agreement shall be directed to the City Representative. 7. Independent Service provider. The services to be performed by Service Provider are. those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation V, SA rev03/10 hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 8. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. 9. Acceptance Not Waiver. 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 or cause of action arising out of performance of this Agreement. 10.. Proiect 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 $N/A. 3 SA rev03/10 11. 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 thereof. 12. 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 party's reasonable attorney fees and costs incurred because of the default. 13. 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. 14.. Entire Agreement. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the 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. 16. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that: a. As of the date of this Agreement: 1. Service Provider does not knowingly employ or contract with an illegal ll SA rev03/10 alien who will perform work under this Agreement; and 2. Service Provider 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 (the "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Service Provider shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Service Provider is prohibited from using the e-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. d. If Service Provider obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Service Provider shall: 1. Notify such subcontractor and the City within three days that Service Provider has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Service Provider shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Service Provider shall comply with any reasonable request by the Colorado Department of Labor and 5 SA rev03/10 Page 3 of 4 Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Service Provider violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Service Provider shall be liable for actual and consequential damages to the City arising out of Service Provider's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Service Provider violates this provision of this Agreement and the City terminates the Agreement for such breach. 18. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit consisting of ® page, attached hereto and incorporated herein by this reference. City acknowledges that L Service Provider is not a Costco employee or an employee of any of its affiliates. CITY OF FORT COLLINS, COLORADO a municipal corporation By: Jam s B O'Neill II, CPPO, FNIGP Dire or f Purchasing and Risk Management Date: A By: PRINT NAME Sole Proprietor Date: 11AY 501, 9016 SA rev03/10 EXHIBIT A SCOPE OF SERVICES 1. Discussion on how the Costco site selection system works, including the time line (approx. 2+ yrs.) 2. Identify and verify all potential sites 3. Define the trade area including drive times, etc. taking into account geographical boundaries in addition to the local Sam's Clubs 4. Order demos 5. Conduct housing studies to be provided and how they interface with the trade area 6. Outline estimated project costs 7. Discussion/modeling on incentives required 8. Estimate sales/profits 9. Discussion on building design, layout to other retail units https://docs.google.com/Doc?id=dhh2scv5_3nbczphgc&btr=EmailImport 6/1/2010 Page 4 of 4 EXHIBIT "B" CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to tl Agreement (the "Agreement"), the Contractor hereby has established policies and procedures with regard sensitive materials. ie City of Fort Collins (the "City") pursuant to this acknowledges that it has been informed that the City to the handling of confidential information and other In consideration of access to certain information, data and material (hereinafter individually and collectively, regardless of nature, referred to as "information") that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of services that the Contractor has agreed to perform, the Contractor hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Contractor agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City , or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City) . The Contractor shall not disclose any such information to any person not having a legitimate need -to -know for purposes authorized by the City. Further, the Contractor shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Contractor understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Contractor shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Contractor ceases to perform services for the City, or the City so requests for any reason, the Contractor shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Contractor understands and agrees that the City's remedies at law for a breach of the Contractor's obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. https://docs.google.com/Doc?id=dhh2scv5_3nbczphgc&btr=EmailImport 6/1/2010