HomeMy WebLinkAbout450506 DITESCO LLC - CONTRACT - AGREEMENT MISC - DOWNTOWN ALLEY ENHANCEMENTS PROJECT ALLEY CAT ALLEYPROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into on the date set forth below by and between THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politic (the "DDA"),
and DITESCO, LLC, a Colorado limited liability company (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, in 2008, the Board of Directors of the DDA (the "Board") approved the
Master Plan for Downtown Alleys and Integrated Walkways and selected for improvement the
following three alleyways in 2009/2010: Montezuma Fuller Alley, from East Mountain Avenue
to East Oak Street, between College Avenue and Remington Street; an as yet unnamed alley
(hereafter called the W. Myrtle Alley), from West Laurel Street to West Myrtle Street, between
College Avenue and Mason Street; and Old Firehouse Alley, from Linden Street to Pine Street,
between Walnut Street and Jefferson Street (the Downtown Alley Enhancement Project");
WHEREAS, the Myrtle Alley schedule was extended to 2010/2011;
WHEREAS, construction of the Downtown Alley Enhancement Project improvements
involves complex infrastructure and utility coordination issues, which create a high degree of
construction risk for the DDA, and which require engineering and construction management
expertise beyond the in-house capabilities of the DDA;
WHEREAS, the Professional offers services to include program, project and
construction management; project risk management and cost control; project delivery; and
licensed engineering; with a specialization in program, project, and construction management of
complex infrastructure projects involving high construction risks;
WHEREAS, based upon the aforementioned needs of the project, and the demonstrated
experience of the Professional in meeting such needs in prior projects involving the City of Fort
Collins, on March 10, 2010, the Board authorized an agreement with the Professional for the
provision of certain pre -construction and construction management services in connection with
the 2009/2010 Downtown Alley Enhancement Project in Montezuma Fuller Alley and Old
Firehouse Alley;
WHEREAS, the services of the. Professional are also required for the proper and
efficient administration and completion of the Downtown Alley Enhancement Project in the W.
Myrtle Alley, which project also involves complex infrastructure and utility coordination issues
which create a high degree of construction risk for the DDA, and which.require engineering and
construction management expertise beyond the in-house capabilities of the DDA;
WHEREAS, the Board, on August 12, 2010, approved the expenditure of up to One
DDAYS&Ditesco.Alley Cat Alley.Rev.08.11.10
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 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.
33. 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.
34. 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 supersede and control the terms
and provisions contained in any attached and incorporated document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date of the last signature below written.
DDATSA.Ditesco.Alley Cat Alley.Rev.08.1 1. 10 10
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY,
a body corporate and politic
i6�"By:
Patty Sp nce Chairperson
Date:
ATTEST:
By: &A��7
Bill Sears, Secret
THE PROFESSIONAL: DITESCO, LLC, a
Colorado limited liability company
By:
Keith Meyer, P.E President
Date: 6- I.T- Z�olo
DDASSADitescoMey Cat Alley.Rev.08.11.10 11
Exhibit A
Scope of Work and Fee Proposal
forthe
Downtown Alley Enhancements Proiect — Alley Cat Alley
Understandinq
The Downtown Development Authority is planning to construct alley improvements to All Cat Alley near the CSU Main
Campus during the summer of 2011.
The improvement plans are being designed by Russell + Mills Studios with support from various specialty sub consultants. The
alley enhancements include utility installation and relocation, pavement, irrigation, electrical, lighting, landscape plantings and
site amenity improvements.
Our role in this project will be to provide the DDA with project and construction management support. This will begin project
management support through schematic design, design development and construction document phases of contract document
preparation. We will further help prepare final technical specifications, provide assistance through the pre -bidding and bidding
phases; managing the construction phase and ensure a complete close out. it is our understanding all work will be procured
following the City of Fort Collins standard Purchasing procedures using the Capital Projects Procedures Manual requirements.
This project is ideal for Ditesco as we specialize in program, project and construction management. Our focus since inception
has been directly targeted at complex infrastructure projects with high levels of construction risk. We will bring our past
experience with the City of Fort Collins coupled with other project experience to help deliver this project on time and on budget.
Phase: Design (SD DD CD
• Ditesco staff will attend, record meeting minutes and assist in meeting management for all design progress meetings
throughout the design phase for Alley Cat Alley.
• Ditesco will establish an electronic document management site (SharePoint) for design document sharing during this
phase.
• We will review and comment on all design submittals (SD, DD, CD document sets) prepared by Russell + Mills. We
expect this to be a minimum of one round of review at each stage of plan development. Comments will be redlined 1
both the technical specifications and plan sets.
uisition and neotiations. we Vill also
• We will attend easement exhibits for incorporation into the easement ntetings to assist -in easement tagreements accare all
necessary o ding to City of Fort Collins
standards.
• Our staff will coordinate utility installation and relocation with various utility companies utilizing the public right-of-way.
Here we will attend at least 6 meetings with utility companies to discuss project impacts to their facilities or any
upgrades they may have planned as part of this project.
• We will assist DDA staff in preparing bid documents coordinated through the City of Fort Collins Purchasing
Department which is likely to Include a prequalification statement, invitation to bid/advertisement, supplementary
conditions and construction agreement.
• We will coordinate plan and specification review through the city of Fort Collins. This Is anticipated to follow a
standard 'capital project" review process utilizing a utility relocation routing sheet process. We will help prepare these
documents, route to the appropriate parties, follow up with meetings and comments as necessary to address issues
brought forth during this process.
Page 2 of 6
Phase: Bidding
• Ditesco staff will help coordinate the Issuance of bid documents through the City of Fort Collins Purchasing
Department.
We will attend the pre -bid meeting and coordinate responses to contractor questions and assist in preparation of
addendums as necessary.
• We will attend. the bid opening, review all bids preparing a bid comparison and coordinate a thorough review of the
contractor's qualification statements. We will recommend award providing our detailed qualifications review to City
Fort Collins Purchasing and Parks Depts as needed.
• Ditesco will help the DDA and Purchasing In routing contracts ensuring they contain the appropriate insurance and
bonds for the work.
Phase: Construction Management
During the construction phase, we will continue management of the document management site (Share Point) housed
on our servers for design team and contractor access. This site will manage all construction phase communications
including submittal review, RFIs, meeting minutes, test results, correspondence and reports.
• Our staff will coordinate, attend and document one pre -construction meeting for the Alley Cat Alley project.
• We will provide for a detailed review of the contractor's schedule. We will ensure a logical, defined CPM schedule is
established with an overall baseline for progress measurement.
• We will conduct weekly progress meetings on site with the general contractor and their subcontractors. We will provide
meeting minutes for all meetings.
We will review and recommend approval of pay applications to thq DDA, review and manage contract changes for
approval by the DDA, coordinate responses to RFIs and provide for overall administration of the construction contract.
• Our staff will perform daily site inspections to ensure quality construction and conformity to the plans and
specifications. We will provide field engineering support addressing field changes quickly to avoid construction delays.
We will provide the DDA and City with weekly reports documenting the contractors work progress, contract times and
other pertinent information.
• We will assist in review of all project submittals providing comments directly to the general contractor.
• Ditesco staff will review all material test reports. We will comment on reports not meeting specifications and
recommend remed€ation measures if necessary. We will ensure the appropriate numbers of tests are taken and that
they are sampled according to industry standards and the project specifications.
• We will maintain a photographic log of the project documenting pre -construction, construction and post construction
conditions. This work is expected to include brief descriptions of each photograph with a filename, time and date
reference. We will perform pre -construction photo and video documentation of existing conditions to minimize risk to
the DDA and City.
As needed, we will coordinate work between the DDA, City, general contractor and outside agencies (e.g. utility
companies) affected by the project. We understand that the DDA will be the main contact for all business owners
affected by the project.
We will maintain project records including contracts, schedules (overall job and three week look -ahead), progress
meeting minutes, material test results, weekly reports, correspondence, pay applications, change orders, routine
Page 3 of 6
photographs, submittals, permits, commissioning records and post construction close-out paperwork (punch lists, lien
waivers, substantial completion/final acceptance).
• We will conduct a final punch list walk through and start up sessions for various stages of the work. This work is
anticipated to include infrastructure, irrigation and electrical.
• Ditesco personnel will ensure that an as -built plan set is maintained and transmitted to Russell + Mills upon completion
of the project. This will be a redlined drawing set maintained by our staff and will be coordinated with plan changes
that may be documented by the general contractor.
Deliverables
• Deliverables will include full project documentation presented in tabbed binders including: design phase
correspondence, plan alternatives, bid information, construction correspondence, pay applications; change orders, field
orders, schedules, submittals, transmittals, reports, photographs, meeting notes, record drawings and other relevant
Information produced throughout the design and construction phase.
Schedule
The anticipated schedule for design and construction of Alley Cat Alley is as follows:
SD Phase:
July — Sept 2010
DD Phase:
Sept — Nov 2010
CD Phase:
Nov — Dec 2010
Bidding:
Feb — March 2011
Construction:
May —September 2011
Estimated Fee:
Estimated Reimbursable Expenses:
Total (MFA and OFA):
$128,110.00
3122.00
$131,232.00
A detailed task breakdown Is included. Please find this on page 6 of this scope of work proposal.
The fee shown above Is to be billed on a time -and material not -to -exceed basis based on the rates shown in the table on page 5
and 6 of this proposal. All reimbursable expenses will be billed at direct cost. Mileage will be billed at $0.75 per mile.
Page 4 of 6
m..
itesmhCo
Project and Construction Services
Ditesco
2009.10 Waae Rate Schedule
Owner/Professional Engineer:
$110.00 per hour
Project Manager:
$95.00 per hour
Construction ManagerlResident Engineer:
$85.00 per hour
Administrative:
$50.00 per hour
Mileage Reimbursement:
$0.75 per mile
All other costs at direct expense
Terms
30 days net
Page 6 of 6
--ditesco
Project and Construction Services
Downtown Development Authority
Downtown Alley Enhancements (Alley Cat)
7/11/2010
Phasefrask Description
Classification
Task Total
Project
Manager(hrs)
Construction
hianager(hrs)
Administrative
(hrs)
$95
$85
$60
Design Phase
Desi n MeeUngs
48
0
48
$8.060
SD Design Review
8
0
0
$760
DD Design Review
8
0
0
760
CD Design Review
8
4
0
$1,100
Easement A uisition assume 1 hr per property at 22parcels)
22
0
0
$090
Easement Exhibit Drawings
12
0
22
$240
Utility Relocation Coordination
30
0
0
$2 850
Russell +Mills CMI Design Assistance
20
0
0
$1 900
Plan Routing and Approval
10
0
4
$1 150
Final Plans and Technical Specification Review round 1
8
0
0
$760
Final Plans and Technical Specification Review round 2
4
4
0
$720
Bid Document Preparation
10
2
0
$1,120
Bidding
Prequalification Statement Supplementary Conditions etc
2
0
0
$190
Pre-B€d Meeting
4
2
2
$650
Bid Opening
2
0
0
$190
Bid and Qualifications Review
12
0
2
$1 240
Construction Management
Set Up Document Management Site
2
1
0
$275
Preconstruction Meeting
4
4
2
$820
Create Job Files
0
2
4
$370
Preconstruction Photo and Video Survey
4
8
0
$1 060
Schedule review
1
2
0
$265
Submittal/shop drawing coordination/review and record keeping
36
18
16
$5,680
Construction progress meetings 1 per week for 16 weeks
32
32
32
$7,360
Contract Management (pay applications, change orders RFIs eta
8
32
8
$3,680
Resident Engineering / Inspections
160
640
0
$89,800
Maintain Job Files test reports, minutes, correspondence, photos, eta
8
46
8
$5 240
Commissionin
4
8
0
$1060
Weekly Reports
0
18
8
$1,760
1
Close Out
Punch listvraik through
4
8
0
$1 060
Record Drawing Compilation
2
8
0
$870
Close out paperwork substantial and final oom letion, eta
4
2
2
$850
Project Close Out (compilation of riles, photos, job records, eta
4
20
30
$3 580
Relmbursables
Mileage @ $0.75 per mile
$1,200
Photocopies, project binderslfiles, eta
51,922
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Assumptions:
-16 week construction phase completed during summer 2011
- Dally construction management effort (8 hrs per day)
- Construction start date - May 2011
- Construction end date - September 2011
Page 6 of 6
Hundred Thirty-one Thousand Two Hundred Thirty-two Dollars and 0/100 ($131,232.00) for
the provision by the Professional of the pre -construction and construction management services
identified in the scope of services attached hereto as Exhibit "A" in connection with the
Downtown Alley Enhancement Project in the W. Myrtle Alley, and authorized the Chairperson
of the Board to enter into this Agreement with the Professional for the provision of such
services;
WHEREAS, the parties desire to enter into this Agreement concerning the provision of
professional services by the Professional to 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 eighteen (18) months, unless sooner
.terminated as hereinafter provided (the "Term").
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 agrees to coordinate the performance of
the Scope of Services with the various phases of the 2010/2011 Downtown Alley Enhancement
Project in the W. Myrtle Alley, as set forth in the Scope of Services, and as directed by the
DDA Representative ("DDA Representative" being defined and described in Section 7 below).
The Professional agrees to perform such services in a timely and diligent manner.
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 "A", attached hereto and
incorporated herein by this reference, up to a maximum amount of One Hundred Thirty-one
Thousand Two Hundred Thirty-two Dollars and 0/100 ($131,232.00) for both the Professional's
time and direct reimbursable costs.
5. 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.
DDATSA.Ditesco.Alley Cat Alley.Rev.08.11.10 2
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. DDA Representative. The DDA shall designate, prior to the Professional's
commencement of work, its project representative as Anne Aspen, DDA Project Manager, who
shall make, within the scope of her authority, all necessary and proper decisions with reference
to this Agreement (the "DDA Representative"). All communications concerning this Agreement
should be directed to the DDA Representative.
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. Early Termination by the. Professional. Notwithstanding the term hereof, the
Professional shall have the right to terminate this Agreement at any time without cause by
providing written notice of termination to the DDA. Such notice shall be delivered at least forty-
five (45) days prior to the termination date contained in said notice unless otherwise agreed to in
writing by the DDA and the Professional. Delivering notice of early termination to the DDA
shall not in any way relieve the Professional of its obligation to perform services under this
Agreement through the effective date of such early termination, or relieve the DDA of its
obligation to pay the Professional for such performance through the effective date of such early
termination.
10. Additional Services, Changes to the Scope of Services. The DDA shall have the
right during the term hereof to request changes or additions to the Scope of Services through
written change order requests. Once the DDA has delivered notice of such change to the
Professional, no work related to the requested change shall proceed until the parties have
reached agreement regarding changes in price or scheduling requirements related to the
requested change, and a written change order documenting the agreed -upon terms is prepared
and issued by the DDA. No such changes or additions shall be considered approved, binding
or enforceable until the parties hereto have signed such change order form. The hourly rate to be
charged for any changed or added services shall be governed by the wage rate schedule
contained in Exhibit "A".
11. Monthly Report. Commencing thirty (30) days after the date of execution of this
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
DDA.PSA.Ditesco.Alley Cat Alley.Rev.08.11.10
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,
nor shall the Professional's employees, agents or subconsultants be considered employees or
agents of the DDA. The DDA shall not 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. Responsibilfty 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, except
to the extent the DDA 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.
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
engaged in work performed under this Agreement:
i. Workers' Compensation. In accordance with the laws of the State of
Colorado.
DDAPSA.Ditesco.Alley Cat A1ley.Rev.08.11.10 .4
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 policies.
C. Subconsultant Liability. In the event that any work performed hereunder is
performed by a subconsultant, the Professional shall be responsible for any
DDATSA.Dhesco.Alley Cat Alley.Rev.08.11.10
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.
D. Breach of Insurance Requirements. In the event the Professional breaches its
insurance obligations under this Agreement, 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 obligations
herein required, and the Professional shall be liable to the DDA for all costs
associated with obtaining and maintaining such policy or policies, and the
DDA shall further have the right to deduct the any and all such costs 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 light, 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 herein contained, 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 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.
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.
DDATSA.Ditesco.Alley Cat Alley.Rev.08.1 1. 10
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 full force and effect.
23. Indemnification. The Professional shall indemnify, save and hold harmless the
DDA, its officers, directors, 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 its officers,
directors, employees or 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 Claim. The DDA 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 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 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 in the pursuit thereof. The DDA shall furnish, at the
Professional's reasonable request and expense, information and assistance necessary for such
defense.
25. Notice. Except as expressly provided otherwise, 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: Ditesco, LLC
Attn: Keith Meyer, P.E.
1315 Oakridge Drive, Suite 120
Fort Collins, CO 80525
DDA.PSA.Ditesco.Alley Cat Alley.Rev.08.11.10
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
Notice of a change of address of a party shall be given in the same manner as all other
notices as hereinabove 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. Sub ject Appropriation.
ect to Annual 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
DDA.PSA.Dltesco.Alley Cat Alley.Rev.08.11.10
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.
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
I 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
DDATSA.Ditesco.Alley Cat Alley.Rev.08.11.10