HomeMy WebLinkAbout369918 ECONOMIC & PLANNING SYSTEMS - CONTRACT - AGREEMENT MISC - ECONOMIC AND PLANNING SYSTEMS INC (2)PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and between
THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as
the "City" and Economic & Planning Systems, Inc., hereinafter referred to as "Professional".
W ITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
Scope of Services. The Professional agrees to provide services in accordance with
the scope of services attached hereto as Exhibit "A", consisting of two (2) pages, and incorporated
herein by this reference.
2. The Work Schedule. The services to be performed pursuant to this Agreement
shall be performed in accordance with the Budget and Work Schedule attached hereto as Exhibit
"B", consisting of one (1) page, and incorporated herein by this reference.
Contract Period. This Agreement shall commence January 21, 2011 and shall continue in
full force and effect until February 28, 2011, unless sooner terminated as herein provided. Time is
of the essence. Any extensions of any time limit must be agreed upon in writing by the parties
hereto.
3. Early Termination by City. Notwithstanding the time periods contained herein, the
City may terminate this Agreement at any time without cause by providing written notice of
termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the
termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent
to the following addresses:
Professional: City: With Copy to:
Economic & Planning City of Fort Collins City of Fort Collins, Purchasing
Systems, Inc. Josh Birks, Economic Advisor PO Box 580
Attn: Daniel Guimond 300 LaPorte Ave Fort Collins, CO 80522
730 17`h St. Suite 630 Fort Collins, CO 80521
Standard Professional Services Agreement- January, 2005
Denver, CO 80202-3511
In the event of any such early termination by the City, the Professional shall be paid for services
rendered prior to the date of termination, subject only to the satisfactory performance of the
Professional's obligations under this Agreement. Such payment shall be the Professional's sole right
and remedy for such termination.
4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be
responsible for the professional quality, technical accuracy, timely completion and the coordination
of all services rendered by the Professional, including but not limited to designs, plans, reports,
specifications, and drawings and shall, without additional compensation, promptly remedy and
correct any errors, omissions, or other deficiencies. The Professional shall indemnify, save and hold
harmless the City, its officers and employees in accordance with Colorado law, from all damages
whatsoever claimed by third parties against the City; and for the City's costs and reasonable
attorneys fees, arising directly or indirectly out of the Professional's negligent performance of any of
the services furnished under this Agreement. The Professional shall maintain commercial general
liability insurance in the amount of $500,000 combined single limits and errors and omissions
insurance in the amount of $1,000,000.
6. Compensation. In consideration of the services to be performed pursuant to this
Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis in
accordance with the Budget and Work Schedule attached hereto as Exhibit "B", consisting of one
(1) page, and incorporated herein by this reference, with maximum compensation (for both
Professional's time and reimbursable direct costs) not to exceed Eighteen Thousand, Four Hundred
Ten Dollars ($18,410.00). Monthly partial payments based upon the Professional's billings and
itemized statements of reimbursable direct costs are permissible. The amounts of all such partial
payments shall be based upon the Professional's City -verified progress in completing the services to
be performed pursuant hereto and upon the City's approval of the Professional's reimbursable direct
costs. Final payment shall be made following acceptance of the work by the City. Upon final
payment, all designs, plans, reports, specifications, drawings and other services rendered by the
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Standard Professional Services Agreement- January, 2005
Professional shall become the sole property of the City.
7. City Representative. The City will designate, prior to commencement of work, its
project representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations, change
8. Monthly Report. Commencing thirty (30) days after the date of execution of this
Agreement and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of Services,
Work Schedule, and other material information. Failure to provide any required monthly report may,
at the option of the City, suspend the processing of any partial payment request.
9. Independent Contractor. The services to be performed by Professional are those of
an independent contractor and not of an employee of the City of Fort Collins. The City shall not be
responsible for withholding any portion of Professional's compensation hereunder for the payment of
FICA, Workers' Compensation, other taxes. or benefits or for any other purpose.
10. Personal Services. It is understood that the City enters into this Agreement based on
the special abilities of the Professional and that this Agreement .shall be considered as an
agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under this Agreement without the prior written
consent of the City.
11. Acceptance Not Waiver. The City's approval of drawings, designs, plans,
specifications, reports, and incidental work or materials furnished hereunder shall not in any way
relieve the Professional of responsibility for the quality or technical accuracy of the work. The City's
approval or acceptance of, or payment for, any of the services shall not be construed to operate as a
waiver of any rights or benefits provided to the City under this Agreement.
12. Default. Each and every term and condition hereof shall be deemed to be a material
element of this Agreement. In the event either party should fail or refuse to perform according to the
terms of this agreement, such party may be declared in default.
13. Remedies. In the event a party has been declared in default, such defaulting party
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Standard Professional Services Agreement- January, 2005
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.
14. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers, employees,
agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal
representatives, successors and assigns of said parties.
15. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of this
Agreement shall be held invalid or, unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision of this Agreement.
16. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit "C", consisting of one (1) page,
attached hereto and incorporated herein by this reference.
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Standard Professional Services Agreement- January, 2005
THE CITY OF FORT COLLINS, COLORADO
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5
Standard Professional Services Agreement- January, 2005
Exhibit "A"
SCOPE
Project Understanding
PROFESSIONAL will provide economic and financial analysis advisory services related to the
development of a proposed large format retail store at the northwest corner of 1-25 and Harmony
Road in the City of Fort Collins. The prospective national retailer is a major regional destination
with the potential to attract new customers to the City as well as to reduce sales leakage from
residents shopping at existing stores outside the City. However the project will be at least
partially competitive with existing retailers which will result in a portion of purchases as sales
transfers. The City therefore is requesting an independent analysis of the net new sales
generation associated with the proposed store.
The proposal to attract the major big box retailer to the City is competitive with sites in other
northern Colorado jurisdictions. The prospective chain is therefore in a position to look for the
best financial terms and conditions surrounding site acquisition and development costs. The
City will therefore also need to structure a public financing package that addresses these
development costs but ensures that the funds provided are fair and reasonable from the
perspective of addressing identified financial needs and also not creating an adverse financial
impact on the City.
The City has requested PROFESSIONAL conduct a series of economic and financial analysis
tasks to estimate the net new retail sales levels to the City from the proposed store and to help
staff structure an appropriate financial incentives package to attract the retailer to the city.
SCOPE OF WORK
Task 1: Retail Sales Flows
PROFESSIONAL will update its existing retail sales flow model estimating total City retail sales
inflows and outflows by major store category. These updates will be based on the recently
released 2007 Census of Retail Trade for Colorado and 2010 annual retail sales by individual
business from the City. Retail expenditures will be first be estimated by market segment
including local expenditures and outflow (leakage) to retail centers outside of the City. Retail
store sales will then be estimated by market segment by major store category including sales to
residents and inflow from visitors and the surrounding regional trade area. These estimates will
be made accounting for the change in retail sales patterns due to recent retail development
including the development of Front Range Village and the Timnath Wal-Mart superstore.
Task 2: Retail Sales Distributions
PROFESSIONAL will estimate annual taxable retail sales for the proposed 155,000 square foot
store based on reducing total sales to net out tax exempt sales to businesses. The distribution of
net taxable sales will then be estimated for three categories 1) sales to residents (reduction in
current leakage); 2) new inflow from outside of the City; and 3) sales transfers from existing
retailers (cannibalization). The sales distribution will be based on data and input from the
prospective retailer on estimated annual sales forecasts by zip code and by existing store
performance and patterns and by estimates of cannibalization levels at major existing
competition including Target and Sam's Club. The sales flow model will be updated accordingly
to forecast net new sales in the initial year of sales and at store maturity in the third year.
Task 3: Public Financing Options
The proposed project is anticipated to need some level of public financing assistance to address
project related development costs and to be competitive with other cities' proposals.
Standard Professional Services Agreement- January, 2005
PROFESSIONAL will work with City Economic Health staff to formulate and evaluate alternative
public financing options for inclusion in the City's proposal. The available incentives could
include ESTIPs, sales tax sharebacks, PIFs, impact fee deferrals or waivers, and/or
combinations of the above. PROFESSIONAL will evaluate and recommend alternative
approaches to each project and work with the City to develop a public financing plan for the
project.
Task 4: Report and Presentations
PROFESSIONAL will prepare a concise decision level report summarizing the economic
analysis and financing options for staff and council review. One City Council meeting is
anticipated to present the results of the analysis.
Task 5: Advisory Services
PROFESSIONAL would continue to work with City staff and City Council through the
development approval process attending appropriate public meetings and negotiation sessions
and evaluating financial and economic issues on an as needed basis.
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Standard Professional Services Agreement- January, 2005
Exhibit B
Budget and Schedule
PROFESSIONAL agrees to complete the above work program on a time and materials basis not
to exceed $18,410 by February 15, 2011. The estimated level of effort by task and staff level is
shown in Table 1.
Table 1
Proposed Budget by Task
Fort Collins Big Box Retail Analysis
Project Research/ Total
Task Description Director Associate Prod. by Task
Task 1 Retail Sales Flows
8
16
8
$4,120
Task 2 Costco Sales Distributions
4
8
4
$2,060
Task 3 Public Financing Options
8
16
8
$4,120
Task 4 Reports and Meetings
12
16
8
$4,960
Task 5 Advisory Services
8
8
4
$2,900
Total Hours
40
64
32
Billing Rates
$210
$115
$75
Total Cost
$8,400
$7,360
$2,400
$18,160
Local Travel and Misc. Expenses
$250
Total Project Cost
$18,410
HA21804-Fort Collins Big Box Analysis\Admin\[21804_1-20pbud.xls]Budget
8
Standard Professional Services Agreement- January, 2005
EXHIBIT C
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City") pursuant to this
Agreement (the "Agreement"), the Contractor hereby acknowledges that it has been informed that
the City has established policies and procedures with regard to the handling of confidential
information and other sensitive materials.
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.
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Standard Professional Services Agreement- January, 2005