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HomeMy WebLinkAbout450506 DITESCO LLC - CONTRACT - AGREEMENT MISC - DITESCO LLC (2)9/y1Z-7�, PROFESSIONAL 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 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, the DDA is the owner. of the real property located in Fort Collins, Colorado, commonly known as Old Town Plaza ("OTP"); WHEREAS, the DDA intends to perform an expansive renovation of OTP, with design work for such renovation anticipated to begin in December 2013 and construction anticipated to be completed in August 2015 (the "OTP Renovation"); WHEREAS, the parties desires to enter into an agreement by which the. Professional will provide to the DDA in connection with the OTP Renovation comprehensive project management services, to include management services for the budget, design, bidding, construction, public relations, communications and stakeholder engagement components of the OTP Renovation, as hereinafter described; WHEREAS, this Agreement was approved by the Board of Directors of the DDA (the "Board") on December 12, 2013, up to a maximum contract of amount of Two Hundred Eighty Thousand Eight Hundred Nineteen Dollars and 0/100 ($280,819.00); and . WHEREAS, the services rendered by the Professional will advance the statutory mission of the DDA. NOW, THEREFORE, in consideration of the mutual covenants and obligations herein expressed, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree, as follows: I. Contract Period. This Agreement shall commence .upon execution hereof and shall continue through December 15, 2615 (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 bythis reference (the "Scope of Services"). 3. The Work Schedule. The Professional acknowledges that the services it is to perform under the Scope of Services are to be coordinated with the various phases of the OTP PSA.DDA.Ditmo.OTP Rev. mim.Rev. 12.19.13.FINAL 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. Intewation/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. THE FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY, a body corpp ate and politic n 1-k, By: lJ rr7 L/ W e Odell, Chairperson Date: 1 / 3 ATTEST: By: / " et�raZ11sietety PSA.DDA.Dite .OTP Renovalion.Rev.12.19.13.FINAL 10 DITESCO, LLC, a Colorado limited liability company By: l Keith Meyer Title: Date: R- 07 0- PSA.DDA.Ditww.OTP Rmovatim.Rev.12.19.13.FINAL j ] 2) CM-0A Scope of Wo'k Under the Mowing phase sections, the listed tasWelements will require research, analysis and recommendations, including coordination with the DDA staff and Hoard of Directors, City staff and City Council, property and business owners, municipal and private utilities, and solicitation of input in public sessions. Proposing consultantloonsultant teams should provide a detailed written response to each task, the definition of cost by task, and the key personnel that will be assigned to ewb task. Budget 1. Development of a budget encompassing all phases of the project. 2 Monthly meetings with DDA Financial Coordinator covering budget updates, now oommitments, and status. 3. Provide all contractor documentation including but not limited to clump order requests, lien waivers, and payment applications to DDA Fimneial Coordinator. Design Phases 1. Development of the RFP package for solicitation of qualified design consultants including all faros, requiremats, proje;,t specifications, wid drawi;rga. 2. Coordination of the solicitation effort with City Purchasing following City Purchasing procedures and protocol including a pre -bid meeting, preparation of addendums, open bids, bid opening meeting, and issuance of a design contract 3. Coordinating and attending all design progress meetings including recording of meeting minutes, and assistance in meeting management. 4. Review and comment on all design submittals for all design phases (Schematic Design -Design Development-Construgion Documents phases). 5.. Creation and maintenance of a web -based or inte net -accessible document management site for desigo/projed beam access. 6. Assist in the negotiation and acquisition of any easements necessary to facilitate the design and construction of the project includingall necessary axhr'bits for incorporation into the easement agreements and according to City of port Collins Standards. 7. Coordination of utility installation and relocation with various utility companies utilizing the public right -of --way (ROW) including attending meetings with utility companies to discuss project impacts to their facilities or any upgrades they may have planned as part of this project. 8. Coordinate plan and specification review through the City of Fort Collins following a standard "capital project" review process including routing through various parties and follow-up with comments and coordination meetings to address. issues. Bidding Phase: 1. Preparation of bid packages including Bid Forms, General Conditions, General Requirrements, Technical specifications, and Drawings. 2., Coordinating the issuance of bid documents through City.of port Collins purchasing. 3. Attend pre -bid meetings, coordinate responses to contractor questions and assist in preparation of addendums as necessary. 4. Attend bid openings, review all bids prepare a bid comparison, and coordinate a thorough review of the contractor's qualification statements. Recommend awards providing detailed qualifications review 5. Assist in muting contracts and reviewing for appropriate msurance and bonding capacity. Construction Manaecmcnt Phase: 1. Continued management of the web based document management site for all construction phase communications including submittal review, RFls, meeting minutes, test results, correspondence, and reports. 2. Coordinate, attend and document a pre-oonst action meeting for the project 3. Conduct a review of the general contractor's project schedule to endure a logical, defined schedule is established with an overall baseline for progress measurement. 4. Conduct weekly progress meetings on site with the general contractor and their subcontractors, providing meeting minutesfor all meetings. 5. Review and recommend approval of pay applications to the DDA, review and manage conhscI changes for approval by the DDA, coordinate responses to RFls, and provide for overall administration of the construction contract. 6. Perform daily site inspections and organize weekly Owner/Arcluted quality walks to ensure quality construction and conformity to the plans and specifications and field engineering support to address field changes in a timely manner to avoid construction delays. 7. Provide weekly reports documeriting.work progress. 8. Coordination of project submittal reviews and providing comments directly to the general contractor. 9. Review of all material test reports, responding and making recommendations as necessary, as well as ensuring the appropriate number of tests are taken and sampled according to'mdustry standards and project specifications. 10. Creation and maintenance of a photographic and/or video log of the project documenting pre. -construction, construction, and post construction conditions. 11. As needed, coordination/facilitation of work between the DDA, City, general contractor, and other outside agencies affected by the project 12. Maintenance of project records including contracts, scbedules, progress resting minutes, material test results, weekly reports, correspondence, pay applications, change orders, routine, photographs, submittals permits, commissioning records and Post construction close-out paperwork (punch lists, lied waivers, substantial completion/final acceptance). 13. Organize and conduct contractor punch list walks for various stages of the work. 14. Create and maintain the as -built set of drawings and transmit to designer at project completion. IS, Compiling of all relevant project-relatod documentation including design and construction phase drawings, submittals, testing reports, photo and/or video logs and organizing into hard copy and electronic deliverables to the DDA. 16. Compiling Operations & Maintenance manuals for the project into hard.copy and electronic deliverables to the DDA. . 3) Public Relations Communications, and Stakeholder Engagement I. Develop a project communications strategy and plan for multiple audiences including but not limited to: • Appointed and elected officials of the DDA Board of Directors and City Council • General public • Old Town Plaza businesses and tenants • Local media 2. Establish key audience related messaging for the project phasing with delivery through a variety of practical and inexpensive formats including, but not limited to: • Public engagement meetings and notices • "Look -ahead" construction reports for affected businesses and building tenants • Monthly status reports for key decision makers • Media releases 3. Coordinate stakeholder engagement process throughout the project phases in collaboration with DDA and City, including but not limited to: Scheduling meetings with key team members, venue coordination, and adveriisements/notices/mvitation coordination Facilitation of stakeholder meetings in collaboration with DDA staff Documentation of stakeholder comments and concerns through.meeting notes, etc. 4. Other communications and public relations support related to alternative fimdraising efforts of the DDA: • Development of 3-5 minute project video for use on a crowd finding application • Coordination with DDA staff to organize an appreciation dinner in Old Town Plaza for crowd fimding supporters • Coordinate with DDA staff to identify key project milestones and photography opportunities for use on social media sites Old Town Plaza Renovation Proposed Timeline 2013 Oct 2013 Nov 2013 Nov ��LI Release RFP For lop Design RFP Select CM/OA andRelease/Public tM/QA and PR Consultants PR Consultantsngagement Proposed Timeline 2014-2015 Dec 2013 Select/Award Design Team Jan -July 2014 Aug -Sept 2014 Jan 201s Aug 201s Design RFP For General Project Ground Project Completion Development Public Contractor and Break Target Engagement Award , Is .1 Im- Renovation and that, at the time of execution hereof, firm dates' for the commencement and completion of such phases have not been determined by the DDA. While it is the intention of the DDA that the certain phases of the OTP Renovation will generally occur as set forth in Exhibit "B," attached hereto and incorporated herein by this reference, the Professional understands that such schedule is subject to change at any time. The Professional therefore agrees to be available to perform the Scope of Services on an as -needed basis at any time during the Term, with specific dates of performance to be determined by the DDA Representative ("DDA Representative" being defined and described in Section 7 below), which dates of performance shall be communicated to the Professional with reasonable advance notice. 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 "C," attached hereto and incorporated herein by this reference, up to a maximum amount of Two Hundred Eighty Thousand Eight Hundred Nineteen Dollars and 0/100 ($280,819.00) for both the Professional's time and direct reimbursable costs, as well as for those of the Professional's subconsultants,- if. any. The maximum amount of direct costs for which the Professional shall be entitled to reimbursement under this Agreement shall be Two Thousand Three Hundred Thirty Eight Dollars and 0/100 ($2,338.00) (1 % of maximum contract amount), as,specified, in Exhibit C. 5. Billin . The Professional shall submit to the DDA detailed monthly invoices which set forth the following: (1) each service rendered; (2) if subconsultants are used, the identity of the party rendering each service; (3) the cost of each service rendered by the Professional or subconsultant(s); 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. 6. Slate Communications LLC as Subconsultant, Use of Additional Subconsultants. The Professional agrees to utilize Slate Communications, LLC, a Colorado limited liability company, as its subconsultant for the Public Relations/Communications component of the Scope of Services. If Slate Communications, LLC, becomes unable or unwilling to perform in such capacity, the Professional understands and agrees that it must obtain the written consent of the DDA prior to utilizing a different subconsultant for such work, which consent shall not be unreasonably withheld. All other 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, who shall make, within the scope of his or 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. Early Termination by the DDA. Notwithstanding the term hereof, the DDA shall PSA.DDA.Ditmeo.OTP Renonion.Rev.12.19,13.PINAL 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 Scone of Services. The DDA shall have the right during the tern 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 rate schedule contained in Exhibit C. 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 payment request. 12. Coordination, Ouality 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, PSA.DDA.Ditmo.07P Rmovatim.Rm 12.19.13TINAL 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. Responsibility 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 of 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. In"surance 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. 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: i. Commercial General Liability ana Commercial general liability and insurance as will provide coverage Automobile Liability Insurance. commercial automobile liability for claims for damages resulting PSA.DDA.Ditmo.OTP Renovatim.Rev.12.19.13YINAL 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 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. PSA.DDA.Ditesco.OTP Renovation:Rev.12.19.13.MAL 5 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 right, 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 tern or provision of this Agreement, such party maybe 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. 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 PSA.DDA.Diusw.OTP Rmovation.Rev.12.19.13XINAL 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 or Federal 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 1315 Oakridge Drive, Suite 120 Fort Collins, CO 80525 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 PSA.DDA.Ditmo.OTP Rmovation.Rev.12.19.13.FINAL 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 heremabove 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. Subject to Annual Appropriation. 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. A. 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 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: PSA.DDA.Ditmw.OTP Renovation.Rev.12.19.13YINAL 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 ii. 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 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 ifduring 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). PSA.DDA.Dituco.OTP RenovationAmI2.19.13FINAL 9