HomeMy WebLinkAbout247203 SURFACE STRATEGY LLC - CONTRACT - AGREEMENT MISC - SURFACE STRATEGY LLCDESIGN CONSULTANT AGREEMENT
THIS AGREEMENT is 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 Surface Strategy LLC, a Colorado limited liability company,
hereinafter referred to as "Design Consultant'.
WITNESSETH:
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 and Work Schedule. The Design Consultant agrees to provide
services in accordance with the scope of services and work schedule attached hereto as Exhibit
"A", consisting of five (5) pages, and incorporated herein by this reference (the "Project').
2. Time of Commencement and Completion of Services. Design Consultant will
initiate the services to be performed pursuant to this Agreement within seven (7) days following
execution of this Agreement. Time is of the essence. Any extensions of the time limits set forth
in this Agreement or Exhibit "A" must be agreed upon in writing, signed by the parties.
3. Contract Period. This Agreement shall commence upon the date of execution
shown on the signature page of this Agreement and shall continue in full force and effect for two
(2) years, unless sooner terminated as herein provided. In addition, at the option of the City, the
Agreement may be extended for an additional period of one (1) year at the rates provided with
written notice to the Design Consultant mailed no later than ninety (90) days prior to contract
WIN
4. 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
Exhibit "A"
SURFACE STRATEGY
A I rnitM I iebAM ( nmPmm
1305 KRAMFRIA ST=1-1-168
DENVER CO 80220
PI-IONI 303. 813. 0501
FAX 303. 861. 3070
swfa<eshwtegeCearthlink.net
SCOPE OF SERVICE
To: Ellen Martin, Art in Public Places
From: Barb McKee, Principal Designer, Surface Strategy LLC
Re: Re -use of Red Fox Liners for the Mason Corridor BRT
Date: May 10, 2011 Revision
Surface Strategy requests a time and material contract in the amount of $ 7,697.27 at an hourly rate of
$50.00 to perform design -build services for the aesthetic treatment of a retaining wall within the Mason Corridor BRT.
These services will relate to re -use of liners used on the Red Fox Meadows project. The intent of this treatment is to
enhance the surface of the concrete wall(s). This scope includes the cost of time and material for the following items:
1. Inspect liners to determine condition and size requirements.
2. Meet with design team to set project goals, identify walls for treatment and present design concepts
3. Layout wall based on engineered elevations.
4. Determine liner use and revise liners to fit new conditions.
5. Consult with engineers, project managers and general contractor in the use of said liners.
6. Site visit and review during construction.
7. Travel will be calculated at .550 cents per mile
8. Price for printed documents from Fed Ex/ Kinkos on 5.10.11
9. Price for commercial truck rental from Enterprise on 5.10.11
DETAILED COSTS:
Inspect liners to determine condition and size requirements.
• 2 site visits to measure and record condition of liners
• Write brief summary for presentation at meeting
• 3 hours per visit x 2 visits = 6 hours $ 300.00
• (64.6 miles one way) or $ 30.00 per round trip allowance x 2 60.00
2. Meet with design team to set project goals and perimeters.
. Present information on condition and size of liners
• Determine budget for re -use of liners
• Identify walls for treatment
• 3 hours $ 150.00
• Michael Baker, 165 S. Union Blvd, St. 200, Lakewood CO 80228 = 27.4 miles 15.07
3. Layout walls based on engineered elevations.
• Layout walls providing two design variations
• Submit cost of each design
• Meet with design team to present design concepts
• 30 hours $ 1,500.00
• Michael Baker, 165 S. Union Blvd, St. 200, Lakewood CO 80228 = 27.4 miles 15.07
• 2 sets of printed documents on 11" x 17" = 24 cents per page x 12 2.88
4. Determine liner use and revise to fit conditions
• Clean, revise or repair liners and deliver to site.
• (Subject to liner conditions and approved design)
• 60 hours $ 3,000.00
• Deliver liners to Scott System and return liners to site = $30.00 allowed x 2 60.00
• Professional shipment of liners 500.26
5. Consult with design team, project managers and general contractor
• Telephone and email correspondence discussing use of liners
• 5 hours $ 250.00
6. Site visit and review during construction
• Review methods of concrete placement = 4 hours
• Review attachment of liner to gang forms = 3 hours
• Review stripping liner from concrete = 3 hours
• Review finished wall surface for quality = 2 hours
• Research final treatment of wall/ select paint color, other = 3 hours
• 15 total hours $ 750.00
• (64.6 miles one way) or $ 30.00 per round trip allowance x 3 trips 90.00
7. 15% Contingency 1,003.99
GENERAL NOTES ON COST DETAILS:
$ 7,697.27 TOTAL
o Based on a time and material contract, all hours and materials will be recorded and billed
according to actual time and labor billed at $50.00 an hour.
o Artist will seek approval from client prior to performing any and all additional services not
specified in this scope to be billed at $50.00 an hour.
o I referenced past, related work completed to date to determine the amount of time and
projected cost of this new work.
Project Time Line:
• Surface Strategy will deliver the formliners to the construction site based on the
contractors schedule, not later than November 20, 2012.
• Surface Strategy will deliver all of the formliners specified in these documents in
repaired, cleaned and prepared for multiple uses on this project.
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File Name: 7073brtWL033fin01
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NOTES:
1. A total of 4 distinct liner
arrangements are used to
place liners within Wall 3.
2. All measurements are
approximate due to the flex-
ible nature of the rubber
liner material.
3. Liners are a total of 2
3/8" thick with a 1 3/4" deep
reveal.
4. Full size Heron liner has
been cut into 3 irregular
pieces along the edge of an
image. The cut lines in this
drawing are approximate.
5. Full size Cattail liner has
been cut into two irregular
feces along
g the edge g of the
image. The cut lines in this
drawing are approximate.
6. Liners are supplied by
the Artist, Barb Mckee,
Surface Strategy LLC,
303.355.1154
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NOTES:
1. A total of 4 distinct liner
arrangements are used to
place liners within Wall 3.
2. All measurements are
approximate due to the flex-
ible nature of the rubber
liner material.
3. Liners are a total of 2
3/8" thick with a 1 3/4" deep
reveal.
4. Full size Heron liner has
been cut into 3 irregular
pieces along the edge of an
image. The cut lines in this
drawing are approximate.
5. Full size Cattail liner has
been cut into two irregular
feces along
g the edge g of the
image. The cut lines in this
drawing are approximate.
6. Liners are supplied by
the Artist, Barb Mckee,
Surface Strategy LLC,
303.355.1154
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Sheet Revisions
MASON CORRIDOR BRIT
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Fort Col ns -
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-
291 NORTH COLLEGE AVENUE 165 S. UNION BLVD., STE. 200
FORT COLLINS, GO e0522 LAKEWOOD,GO 0022e
970.221.6605 720.514.110o
Construction Drawings
RETAINING WALLS
WALL FORM LINER DETAILS (SHEET I OF 2)
Project No.
Date:
Comments
Init.
Vert. Scale:
No Revisions:
Ft. Collins: 7073
Unit Leader Initials
Revised:
Designer: 8. McKEE
Structure
Detailer: B. McKEE
Numbers
Void:
Sheet Subset: WALLS
Subset Sheets: W33 OF 39
Sheet Number 569
C 1-302
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Print Dote: 9/23/2011
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Sheet Revisions
IMASON CORRIDOR BRT
2BI NERi4 COLLEGE nvENLE 165 S. LNTON BLVD., STE. 200
:0R7 CM - -INS, Cu 5oe22 _n,EWoao, Ca Bu228
970. P_] C05 720.514. n
Construction Drawin S
g
RETAINING WALLS
WALL FORM LINER DETAILS (SHEET 2 OF 2)
Project No.
J
File Nome: 7073brtWL034fln02.d n
9
Date:
Comments
Init.
Horiz. Scale: Vert. Scale:
No Revisions:
Ft. Collins: 7073
Unit Information Unit Leader Initials
Revised:
Designer: 8. MtcKLEEJ
Structure
Detailer: B. McKEE
Numbers
Void:
Sheet Number �J%O
Sheet eet Subset: WALLS
Subset Sheets: W34 OF 39
C 1-302
Exhibit B
FEDERAL TRANSIT ADMINISTRATION
TABLE OF CONTENTS
Federally Required and Other Model Contract Clauses
1.
NO GOVERNMENT OBLIGATION TO THIRD PARTIES...................................................................2
2.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS.............................................................................................................................................................
2
3.
ACCESS TO RECORDS AND REPORTS...........................................................................................2
4.
FEDERAL CHANGES..........................................................................................................................3
1.
TERMINATION.....................................................................................................................................4
2.
CIVIL RIGHTS REQUIREMENTS........................................................................................................5
3..
DISADVANTAGED BUSINESS ENTERPRISE (DBE)........................................................................6
4.
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ..............................6
5.
GOVERNMENT -WIDE DEBARMENT AND SUSPENSION(NONPROCUREMENT)........................7
6.
CARGO PREFERENCE REQUIREMENTS.........................................................................................8
7.
FLY AMERICA REQUIREMENTS.......................................................................................................8
8.
ENERGY CONSERVATION REQUIREMENTS..................................................................................8
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of
the underlying contract, absent the express written consent by the Federal
Government, the Federal Government is not a party to this contract and shall not be
subject to any obligations or liabilities to the Purchaser, Contractor, or any other party
(whether or not a parry to that contract) pertaining to any matter resulting from the
underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the
clause shall not be modified, except to identify the subcontractor who will be subject to
its provisions.
2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et seg. and U.S. DOT regulations,
"Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to
this Project. Upon execution of the underlying contract, the Contractor certifies or
affirms the truthfulness and accuracy of any statement it has made, it makes, it may
make, or causes to be made, pertaining to the underlying contract or the FTA assisted
project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Contractor further acknowledges that if it makes, or causes
to be made, a false, fictitious, or fraudulent claim, statement, submission, or
certification, the Federal Government reserves the right to impose the penalties of the
Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal
Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in
part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
§ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001
and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government
deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that
the clauses shall not be modified, except to identify the subcontractor who will be
subject to the provisions.
3. ACCESS TO RECORDS AND REPORTS
Access to Records - The following access to records requirements apply to this Contract
A. Where the Purchaser is not a State but a local government and is the FTA Recipient
or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the
Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller
General of the United States or any of their authorized representatives access to any
books, documents, papers and records of the Contractor which are directly pertinent
to this contract for the purposes of making audits, examinations, excerpts and
transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the
FTA Administrator or his authorized representatives including any PMO Contractor
access to Contractor's records and construction sites pertaining to a major capital
project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance
through the programs described at 49 U.S.C. 5307, 5309 or 5311.
B. The Contractor agrees to permit any of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
C. The Contractor agrees to maintain all books, records, accounts and reports required
under this contract for a period of not less than three years after the date of
termination or expiration of this contract, except in the event of litigation or settlement
of claims arising from the performance of this contract, in which case Contractor
agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller
General, or any of their duly authorized representatives, have disposed of all such
litigation, appeals, claims or exceptions related thereto. Reference 49 CFR
18.39(i)(11).
D. FTA does not require the inclusion of these requirements in subcontracts.
Requirements for Access to Records and Reports by Types of Contract
Operational
p
Acquisition
q
Contract
Service
Turnkey
Construction
Architectural
of Rolling
Professional
Characteristics
Contract
Engineering
Stock
Services
I State Grantees
a. Contracts below
None
Those
None
None
None
None
SAT ($100,000)
imposed on
state pass
thru to
b. Contracts above
None
Contractor
Yes, if non-
None unless
None
None unless non-
$100,000/Capital
unless'
competitive
non-
unless
competitive award
Projects
non-
award or if
competitive
non-
competitive
funded thru'
award
competitiv
award
5307/5309/5
a award
311
II Non State Grantees
Those
a. Contracts below
SAT ($100,000)
Yes
imposed on
Yes
Yes
Yes
Yes
non -state
b. Contracts above
Grantee
$100,000/Capital
pass thru to
Projects
Yes'
Contractor
Yes
Yes
Yes
Yes
Sources of Authority: ' 49 USC 5325 (a) ` 49 CFR 633.17 ' 18 CFR 18.36 (i)
4. FEDERAL CHANGES
Federal Changes - Contractor shall at all times comply with all applicable FTA regulations,
policies, procedures and directives, including without limitation those listed directly or by
reference in the Master Agreement between Purchaser and FTA, as they may be amended
or promulgated from time to time during the term of this contract. Contractor's failure to so
comply shall constitute a material breach of this contract.
1. TERMINATION
a. Termination for Convenience (General Provision) The City may terminate this
contract, in whole or in part, at any time by written notice to the Contractor when it is in
the Government's best interest. The Contractor shall be paid its costs, including
contract close-out costs, and profit on work performed up to the time of termination.
The Contractor shall promptly submit its termination claim to the City to be paid the
Contractor. If the Contractor has any property in its possession belonging to the City,
the Contractor will account for the same, and dispose of it in the manner the City
directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor
does not deliver supplies in accordance with the contract delivery schedule, or, if the
contract is for services, the Contractor fails to perform in the manner called for in the
contract, or if the Contractor fails to comply with any other provisions of the contract,
the City may terminate this contract for default. Termination shall be effected by
serving a notice of termination on the contractor setting forth the manner in which the
Contractor is in default. The contractor will only be paid the contract price for supplies
delivered and accepted, or services performed in accordance with the manner of
performance set forth in the contract.
If it is later determined by the City that the Contractor had an excusable reason for not
performing, such as a strike, fire, or flood, events which are not the fault of or are
beyond the control of the Contractor, the City, after setting up a new delivery of
performance schedule, may allow the Contractor to continue work, or treat the
termination as a termination for convenience.
c. Opportunity to Cure (General Provision) The City in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor [an appropriately short
period of time] in which to cure the defect. In such case, the notice of termination will
state the time period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to the City's satisfaction the breach or default of any of the
terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by
Contractor of written notice from the City setting forth the nature of said breach or
default, the City shall have the right to terminate the Contract without any further
obligation to Contractor. Any such termination for default shall not in any way operate
to preclude the City from also pursuing all available remedies against Contractor and
its sureties for said breach or default.
A. Termination for Convenience of Default (Cost -Type Contracts) The (Recipient)
may terminate this contract, or any portion of it, by serving a notice or termination on
the Contractor. The notice shall state whether the termination is for convenience of the
(Recipient) or for the default of the Contractor. If the termination is for default, the
notice shall state the manner in which the contractor has failed to perform the
requirements of the contract. The Contractor shall account for any property in its
possession paid for from funds received from the (Recipient), or property supplied to
the Contractor by the (Recipient). If the termination is for default, the (Recipient) may
fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to
the value, if any, of work performed up to the time of termination. The Contractor shall
promptly submit its termination claim to the (Recipient) and the parties shall negotiate
the termination settlement to be paid the Contractor.
If the termination is for the convenience of the (Recipient), the Contractor shall be paid
its contract close-out costs, and a fee, if the contract provided for payment of a fee, in
proportion to the work performed up to the time of termination.
If, after serving a notice of termination for default, the (Recipient) determines that the
Contractor has an excusable reason for not performing, such as strike, fire, flood,
events which are not the fault of and are beyond the control of the contractor, the
(Recipient), after setting up a new work schedule, may allow the Contractor to continue
work, or treat the termination as a termination for convenience.
2. CIVIL RIGHTS REQUIREMENTS
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will
not discriminate against any employee or applicant for employment because of race,
color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to
comply with applicable Federal implementing regulations and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race. Color, Creed, National Origin. Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Contractor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
"Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. Parts 60 et sec., (which implement Executive
Order No. 11246, "Equal Employment Opportunity," as amended by Executive
Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in the
future affect construction activities undertaken in the course of the Project. The
Contractor agrees to take affirmative action to ensure that applicants are employed,
and that employees are treated during employment, without regard to their race,
color, creed, national origin, sex, or age. Such action shall include, but not be
limited to, the following: employment, upgrading, demotion or transfer, recruitment
or recruitment advertising, layoff or termination; rates of pay or'other forms of
compensation; and selection for training, including apprenticeship. In addition, the
Contractor agrees to comply with any implementing requirements FTA may issue.
(b) Acme - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332,
the Contractor agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Contractor agrees to
comply with any implementing requirements FTA may issue.
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 Design Consultant
must provide written notice to the City of such condition within fifteen (15) days from the onset
of such condition.
5. Early Termination bLy/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 Design Consultant. 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 hand delivered
or mailed, postage prepaid and sent to the following addresses:
City:
Ellen K. Martin
Lincoln Center
417 W. Magnolia Street
Fort Collins, CO 80521
(970)416-2789
Design Consultant:
Surface Strategy, LLC
Barb McKee
1305 Krameria St. #H-168
Denver, CO 80220
(303)861-3070
In the event of early termination by the City, the Design Consultant shall be paid for
services rendered to the date of termination, subject only to the satisfactory performance of the
Design Consultant's obligations under this Agreement. Such payment shall be the Design
Consultant's sole right and remedy for such termination.
6. Changes to Scope of Work.
A. Changes by Design Consultant. The Design Consultant cannot change the Project
specifications in Exhibit "A" without advance written approval from the City.
B. Changes by the City. The City may request changes in the Project through
written Change Order Requests. The Design Consultant and the City will then negotiate in good
faith to reach agreement on any necessary changes in price or scheduling requirements. Once the
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the
requirements of U.S. Equal Employment Opportunity Commission, "Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities
Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(3) The Contractor also agrees to include these requirements in each subcontract financed
in whole or in part with Federal assistance provided by FTA, modified only if necessary
to identify the affected parties.
3. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations,
Part 26, Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs. The national goal for participation of
Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE
participation is _9.9_ %. A separate contract goal [has not] been established for this
procurement.
b. The contractor shall not discriminate on the basis of race, color, national origin, or sex
in the performance of this contract. The contractor shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted
contract. Failure by the contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this contract or such other
remedy as City of Fort Collins deems appropriate. Each subcontract the contractor
signs with a subcontractor must include the assurance in this paragraph (see 49 CFR
26.13(b)).
c. The successful bidder/offeror will be required to report its DBE participation obtained
through race -neutral means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this
contract for satisfactory performance of that work no later than 30 days after the
contractor's receipt of payment for that work from the City of Fort Collins. In addition,
[is required to return any retainage payments to those subcontractors within 30
days after incremental acceptance of the subcontractor's work by the City of Fort
Collins and contractor's receipt of the partial retainage payment related to the
subcontractor's work.]
e. The contractor must promptly notify City of Fort Collins whenever a DBE
subcontractor performing work related to this contract is terminated or fails to complete
its work, and must make good faith efforts to engage another DBE subcontractor to
perform at least the same amount of work. The contractor may not terminate any DBE
subcontractor and perform that work through its own forces or those of an affiliate without
prior written consent of City of Fort Collins.
4. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions
include, in part, certain Standard Terms and Conditions required by DOT, whether or not
expressly set forth in the preceding contract provisions. All contractual provisions required
by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference.
Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed
to control in the event of a conflict with other provisions contained in this Agreement. The
Contractor shall not perform any act, fail to perform any act, or refuse to comply with any
(name of grantee) requests which would cause (name of grantee) to be in violation of the
FTA terms and conditions.
5. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Background and Applicability
In conjunction with the Office of Management and Budget and other affected Federal
agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This
government -wide regulation implements Executive Order 12549, Debarment and
Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101
note (Section 2455, Public Law 103-355, 108 Stat. 3327).
The provisions of Part 29 apply to all grantee contracts and subcontracts at any level
expected to equal or exceed $25,000 as well as any contract or subcontract (at any level)
for Federally required auditing services. 49 CFR 29.220(b). This represents a change
from prior practice in that the dollar threshold for application of these rules has been
lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in
the regulation as "covered transactions."
Grantees, contractors, and subcontractors (at any level) that enter into covered
transactions are required to verify that the entity (as well as its principals and affiliates) they
propose to contract or subcontract with is not excluded or disqualified. They do this by (a)
Checking the Excluded Parties List System, (b) Collecting a certification from that person,
or (c) Adding a clause or condition to the contract or subcontract. This represents a
change from prior practice in that certification is still acceptable but is no longer required.
49 CFR 29.300.
Grantees, contractors, and subcontractors who enter into covered transactions also must
require the entities they contract with to comply with 49 CFR 29, subpart C and include this
requirement in their own subsequent covered transactions (i.e., the requirement flows
down to subcontracts at all levels).
Clause Language
The following clause language is suggested, not mandatory. It incorporates the optional
method of verifying that contractors are not excluded or disqualified by certification.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29. As such,
the contractor is required to verify that none of the contractor, its principals, as
defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded
or disqualified as defined at 49 CFR 29.940 and 29.945.
The contractor is required to comply with 49 CFR 29, Subpart C and must include
the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered
transaction it enters into.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by {insert
agency name). If it is later determined that the bidder or proposer knowingly rendered an
erroneous certification, in addition to remedies available to {insert agency name}, the
Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment. The bidder or proposer agrees to comply with the
requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of
any contract that may arise from this offer. The bidder or proposer further agrees to
include a provision requiring such compliance in its lower tier covered transactions.
6. CARGO PREFERENCE REQUIREMENTS
Cargo Preference - Use of United States -Flag Vessels - The contractor agrees: a. to
use privately owned United States -Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
United States -Flag commercial vessels; b. to furnish within 20 working days following the
date of loading for shipments originating within the United States or within 30 working days
following the date of leading for shipments originating outside the United States, a legible
copy of a rated, "on -board" commercial ocean bill -of -lading in English for each shipment of
cargo described in the preceding paragraph to the Division of National Cargo, Office of
Market Development, Maritime Administration, Washington, DC 20590 and to the FTA
recipient (through the contractor in the case of a subcontractor's bill -of -lading.) c. to include
these requirements in all subcontracts issued pursuant to this contract when the
vessel.
FLY AMERICA REQUIREMENTS
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in
accordance with the General Services Administration's regulations at 41 CFR Part 301-10,
which provide that recipients and subrecipients of Federal funds and their contractors are
required to use U.S. Flag air carriers for U.S Government -financed international air travel
and transportation of their personal effects or property, to the extent such service is
available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly
America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate
certification or memorandum adequately explaining why service by a U.S. flag air carrier
was not available or why it was necessary to use a foreign air carrier and shall, in any
event, provide a certificate of compliance with the Fly America requirements. The
Contractor agrees to include the requirements of this section in all subcontracts that may
involve international air transportation.
ENERGY CONSERVATION REQUIREMENTS
Energy Conservation - The contractor agrees to comply with mandatory standards and
policies relating to energy efficiency which are contained in the state energy conservation
plan issued in compliance with the Energy Policy and Conservation Act.
parties have reached agreement, the City will issue a written Change Order documenting the
agreed upon terms. The Design Consultant must not proceed with work related to the requested
change until the City issues the Change Order.
7. Contract Sum. The City shall pay the Design Consultant for the performance of
this Contract, subject to additions and deletions provided herein, a design fee of Fifty Dollars
($50.00) per hour for time spent on the Project (excluding travel time), reasonable cost of design
materials, and a mileage invoice of $.550 per mile for working trips to Fort Collins up to a
maximum of $30 per round trip. The total contract sum for the Project shall not exceed Seven
Thousand Six Hundred Ninety -Seven Dollars and Twenty -Seven Cents ($7,697.27). The Design
Consultant will submit to the APP Coordinator monthly, detailed invoices.
8. 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.
9. Independent Service Provider. The services to be performed by Design
Consultant 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 Design
Consultant's compensation hereunder for the payment of FICA, Workmen's Compensation or
other taxes or benefits or for any other purpose.
10. Personal Services. It is understood that the City enters into the Agreement based
on the special abilities of the Design Consultant, and accordingly, the Design Consultant shall
neither assign any primary creative responsibilities nor delegate any primary creative duties
arising under the Agreement to any other person, without the prior written consent of the City.
11. Failure to Complete. If Design Consultant becomes ill, dies, or is otherwise
unable or unwilling to complete the Project in accordance with the Agreement, any work already
done on the Project will be the City's property. The City will be entitled to withhold any sums
not yet paid to Design Consultant, and may use any such sums toward completion of the Project
in any manner the City deems appropriate.
12. License and Business. The Design Consultant must hold, in the Design
Consultant's name, all necessary licenses and permits to perform the work. The Design
Consultant must have full authority to do business in the State of Colorado, and have a
designated place of business for making and accepting communications with or from the City.
The Design Consultant must maintain a current address and telephone number with the City
throughout the term of this Agreement.
13. Subcontractors. The Design Consultant may use subcontractors to complete the
fabrication, transportation and/or installation of the Project, under Design Consultant's direction
and supervision. The Design Consultant must, within fifteen (15) days of the effective date of
this Agreement, submit to the City the names of all subcontractors Design Consultant intends to
use for the work. The Design Consultant must not employ any subcontractors that the City, in its
discretion, objects to as lacking the capability to properly perform work of the type and scope
intended for the Project. The Design Consultant is as fully responsible to the City for the acts
and omissions of Design Consultant's subcontractors and of persons either directly or indirectly
employed by them as for the acts and omissions of persons directly employed by Design
Consultant. Nothing contained in the contract documents creates any contractual relation
between any subcontractor and the City, except to the extent the City is indemnified or insured
through requirements upon said subcontractor. If subcontractors are used, the City may, in its
discretion, require the submission of lien waivers in a form reasonably acceptable to the City by
any such subcontractors prior to final payment to the Design Consultant.
14. Acceutance 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.
15. Warranty.
(a) Design Consultant warrants that all work performed hereunder shall be
performed with the highest degree of competence and care in accordance
with accepted standards for work of a similar nature.
(b) Unless otherwise provided in the Agreement, all materials and equipment
incorporated by Design Consultant into any work shall be new and, where
not specified, of the most suitable grade of their respective kinds for their
intended use, and all workmanship shall be acceptable to City.
16. Ownership of Works Created. The Design Consultant hereby assigns irrevocably
to the City any and all rights to works designed or created and in any way related to the Services
to be provided by Design Consultant under this Agreement, including any rights of Design
Consultant under the 1990 "Visual Artists' Rights Act", which shall, if not assignable, hereby
knowingly be waived by Design Consultant. Design Consultant shall retain no rights except as
specifically granted in writing by the City. The Design Consultant shall have the right to make
and use two-dimensional images or representations of the completed Project. Any commercial
use of such images or representations must credit the City of Fort Collins Art in Public Places
program.
17. 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.
18. 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 him or herself 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 legal fees, including attorney fees
and costs, incurred because of the default.
19. Entire Agreement/Binding Effect. This Agreement, along with all exhibits or
other documents incorporated herein, 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.
20. Ind emnity/Liability.
(a.) The Design Consultant agrees to indemnify and save harmless the City, its
officers, agents and employees against and for reasonable -damages arising from
accidents to persons or property occasioned by the negligent acts of Design
Consultant, its agents or employees in the performance of the Work.
(b.)The Design Consultant shall take all necessary precautions in performing the
work hereunder to prevent injury to persons and property.
21. Insurance and Liability. The Design Consultant must provide, or in lieu of
personally providing, must require all Subcontractors providing services in connection with this
Agreement to provide, from insurance companies acceptable to the City, the insurance coverage
designated below, and pay all costs for such coverage, before commencing work under this
Agreement. The Design Consultant must furnish the City with certificates of insurance as
specified herein showing the type, amount, class of operations covered, effective dates, and date
of expiration of policies, and containing substantially the following statement:
"The insurance covered by this Certificate will not be canceled or materially altered,
except after ten (10) days written notice has been received by the Owner, the City of Fort
Collins."
In case of the breach of any provision of this Section, the City, at its option, may take out
and maintain such insurance at the Design Consultant's expense.
The Design Consultant must not commence work under this Agreement until all the
insurance required hereunder has been reviewed by the City and the Design Consultant has
provided an acceptable certificate of insurance to the City.
The Design Consultant, or in lieu thereof, all Subcontractors of Design Consultant, must
maintain during the life of this Agreement the Worker's Compensation Insurance required by
state statute and, in addition, Employer's Liability Insurance in an amount not less than $400,000
for each occurrence, for all of Design Consultant's employees, if any, to be engaged in work on
the Project under this Agreement.
The Design Consultant and all Subcontractors of Design Consultant must maintain during
the life of this Agreement commercial general liability insurance sufficient to provide coverage
for claims for damages for personal injury, including accidental death, as well as for claims for
property damage, which may arise directly or indirectly from performance of the work under this
Agreement. Coverage for property damage must be on a "broad form" basis. Amount of
insurance to be provided must be not less than $300,000 combined single limits for bodily injury
and property damage.
The Design Consultant is responsible for any liability directly or indirectly arising out of
the work performed under this Agreement by a subcontractor, to the extent that liability is not
covered by the Subcontractor's insurance.
The Design Consultant's and any subcontractor's insurance policies required under this
Agreement must name the City as an additional insured for any claims arising out of work
performed under this Agreement.
22. 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.
23. Federal Requirements. Because the Project is funded by a Federal Transportation
Administration grant, Design Consultant must comply with the additional provisions listed in
Exhibit `B", consisting of eight (8) pages, attached and incorporated herein by reference. In the
event of a conflict between the terms of this Agreement and Exhibit B, Exhibit B will control.
[The remainder of this page is intentionally left blank.]
THE CITY OF FORT COLLINS, COLORADO
BY: \,w
am s B. O'Neill, Il, CPPO, FNIGP
�iFLtor of Purchasing and Risk Management
ATTEST: G��. ' o�
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City Clerk ' ti
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APPROVED AS TO ORM: 0 <O;?.{DD
AssistanlrCityttomey
DESIGN CONSULTANT:
SURFACE STRATEGY LLC
a Colorado limited liability company n A
ByBarbara
Bar ara McKee, Manager
Date: 1 C3 4 T'
STATE OF COLORADO )
)ss.
COUNTY OF/,a+-, m er )
Subscribed and sworn to before me thisa`/"'�' day of2012, by
Barbara McKee as Manager of Surface Strategy LLC.
Witness my hand and official seal.
My commission expires: "Y- ado - a 0 / q
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COtO�Pr�,y �.
Notary Public