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HomeMy WebLinkAbout488102 DAVIDSON & POWERS - CONTRACT - AGREEMENT MISC - DAVIDSON & POWERSPROFESSIONAL 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 Davidson & Powers LLC, 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. Contract Period. The services to be performed pursuant to this Agreement shall be initiated June 15. Services shall be completed no later than July 15, 2011. Time is of the essence. Any extensions of the time limit set forth above 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: Davidson & Powers LLC City of Fort Collins City of Fort Collins Attn: Alberta Davidson Attn: Josh Birks Purchasing 3508 Vista Corona PO Box 580 PO Box 580 Fallbrook, CA 92028 Fort Collins, CO 80522 Fort Collins, CO 80522 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 Services Agreement Davidson & Powers LLC Page 1 of 10 EXHIBIT "C" CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City") pursuant to this Agreement (the "Agreement"), the Professional 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 Professional has agreed to perform, the Professional 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 Professional 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 Professional shall not disclose any such information to any person not having a legitimate need -to - know for purposes authorized by the City. Further, the Professional 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 Professional 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 Professional 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 Professional ceases to perform services for the City, or the City so requests for any reason, the Professional 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 Professional understands and agrees that the City's remedies at law for a breach of the Professional'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. Professional Services Agreement Davidson & Powers LLC Page 10 of 10 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 N/A. 5. Compensation. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay Professional a fixed fee in the amount of Twenty Thousand Dollars ($20,000.00) plus reimbursable direct costs. All such fees and costs shall not exceed Twenty -Five Thousand Dollars ($25,000.00) as per Exhibit "B", consisting of one (1) page, and incorporated herein by this reference. Monthly partial payments based upon the Professional's billings and itemized statements 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 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 Professional shall become the sole property of the City. 6. 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 Professional Services Agreement Davidson & Powers LLC Page 2 of 10 proper decisions with reference to the project. All requests for contract interpretations, change orders, and other clarification or instruction shall be directed to the City Representative. 7. 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 forthe payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 8. 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. 9. 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. 10. 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. 11. 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 Professional Services Agreement Davidson & Powers LLC Page 3 of 10 because of the default. 12. 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. 13. 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. 17. Prohibition Against Emolovino Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. 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 (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. 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 subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. C. Professional 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 Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional shall: Professional Services Agreement Davidson 8 Powers LLC Page 4 of 10 1. Notify such subcontractor and the City within three days that Professional 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 Professional 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. Professional shall comply with any reasonable request by the Colorado Department of Labor and 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 Professional 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, Professional shall be liable for actual and consequential damages to the City arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach. Professional Services Agreement Davidson & Powers LLC Page 5 of 10 eLZ J'cee /, 4C i r ATTEST: Corporate Secretary THE CITY OF FORT COLLINS, COLORADO mes B. O'Neiit II, CPPO, FNIGP Dir of PurchasiT; D k4-��,-Nu ng & Risk Management DATE: 6111 / // Davidso Powers LL+r -� � By: n�Ln(,(.c _.. Title: J CORPORATE PRESIDENT OR VICE PRESIDENT Date: i (Corporate Seal) Profeswrial Services Agreement Davidson & Powers LLC Page 6 of 10 EXHIBIT "A" SCOPE OF WORK Objectives & Scope of Services: The City of Fort Collins wishes to be proactive and strategic in both managing and enhancing the overall merchandising landscape of the city. Initial efforts will include an assessment of the areas of Old Town (downtown) and Mid Town. A comprehensive approach is needed that includes addressing efforts with the ICSC events such as the Fall San Diego event as well as other alternatives to marketing Fort Collins' retail opportunities. As such this requires the tactical plan to be compelling, competitive, relevant and promotable; it is these four drivers which ultimately influence the geographic draw, frequency, longevity and expenditure per consumer visit and, thereby, drive sales, income and asset value. Develop a vision and positioning strategy that will establish Fort Collins as a dynamic brand; 2. Prepare a Strategic Plan outlining the steps for implementing a positioning program directed at creating market distinction for both Fort Collins at large as well as individual retail areas; 3. Define concepts that mazimize the leasability, consumer draw, and alternative revenue opportunities with the goal of enhancing the economic performance of retail in Fort Collins. Process Following is a list of steps and corresponding time range for this assignment: Project Orientation: "Desktop" familiarization with all targeted areas; analysis of trade area and demographics. Field Visit: Field review of immediate trade area and targeted as well as competitive properties; assessment of merchandising mix. Analysis of the existing retail tenants present in the market including commentary on sales performance of key retailers; analysis of regional competition. Review of existing marketing materials including constructive criticism of existing retailer marketing materials. 3. Strategic Plan: Development of vision and positioning strategy to establish market distinction; identification of market strengths and weaknesses with emphasis on methods to bridge to opportunities; development of a preliminary retailer target list; cross referencing of prospect " hit list" with available/future Professional Services Agreement Davidson & Powers LLC Page 7 of 10 space in the market and identifying potential inducements and deal structure points that could impact lease economics. 4. Probability Study: Informal assessment of the positioning strategy with identified retailers. Refinement of the" hit list" and opportunity sites into a list of 5 key projects/retailer opportunities that have the best probability for impacting the market and supporting the Fort Collins' brand and strategy. Future Steps: 5. Implementation & Marketing Materials: Develop a strategy specifically targeted at the Top 5 opportunities to garner the interest of the key retailers; To the extent necessary/possible arrange meetings at ICSC San Diego Deal Making, ICSC Regional Meetings, or other appropriate venues to make an effective presentation of the Fort Collins market; Create an effective and tailored marketing presentation to focusing on the Top 5 key retailers; develop marketing materials for further use. 6. Assist in execution of the defined concepts to maximize the leasability, consumer draw and alternative revenue opportunities with the goal of enhancing the economic performance of retail in Fort Collins. Professional Services Agreement Davidson & Powers LLC Page 8 of 10 EXHIBIT "B" COMPENSATION • Consultant will honor and exercise appropriate confidentiality. • Fixed project fee is $20,000 with expense reimbursements not to exceed $5,000. • Additional work outside the defined scope of services will be billed at standard daily fee and travel rate, subject to prior written approval by client. Fee for travel to and participation in meetings other than those identified have not been accounted for. • Consultant's standard hourly fee is $250 per hour with a 3 hour minimum; daily fee is $2000.00. Time incurred in traveling is billed at one-half the daily or hourly fee, as applicable. • All travel to be pre -approved with client covering cost of transportation, lodging, registration fees, meals, prospect entertainment and other related expenses as appropriate. • Payment terms: 50% invoiced and due upon commencement date of June 15, balance and documented appropriate reimbursement of expenses due upon project completion, submission of final report and submission of final invoice Professional Services Agreement Davidson & Powers LLC Page 9 of 10