HomeMy WebLinkAbout433987 MORTENSON CONSTRUCTION - CONTRACT - RFP - 8031 CM GC SERVICES FOR OLD TOWN SQUARE RENOVATIONqI —6 46
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
MortensonConstruction. Inc. (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 Square ("OTS");
WHEREAS, the DDA intends to perform an expansive renovation of OTS, with
construction anticipated to begin in;2014 (the "OTS Renovation");
WHEREAS, the parties desires to enter into an agreement by which the Professional will
provide to the DDA certain design services in connection with the OTS Renovation, as
hereinafter described;
WHEREAS, this Agreement was approved by the Board of Directors of the DDA (the
"Board") on December 11, 2014 up to a maximum contract of amount of Fifty Thousand Dollars
and zero cents ($50,000.0); 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:
1. Contract Period. This Agreement shall commence upon execution hereof and
shall continue until March 31, 2015 (the "Term").
1 Scone of Services. The Professional agrees to provide services in accordance
with the scope of services attached hereto as Exhibit "A" and incorporated herein by this
reference (the "Scope of Services").
3. The Work Schedule. The Professional understands that. the services it is to
perform under the Scope of Services will need to be coordinated with certain phases of the OTS
Renovation, and that the dates of such performance have not yet been established. Accordingly,
the Professional 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
PSA.OTS Renovation.Form
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 lastsignature below written.
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY, a
body Corp rate and politic
By:
r r7 0 -
Wyn e Odell, Ch ' erson
i
Date: ( S
THE PR
By; IIIX/j
fliiL� v
Date: ZV4 y 8
PSA.OTS Renovation Form_Mortenson 10
Exhibit A
Scope of Services
The scope of services provided under this contract shall include construction scheduling, cost
estimating, meeting attendance, preconstruction services, construction readiness, construction
plan review, GMP development, subcontractor solicitation and other design services as may
defined by the DDA in advance of a CM/GC contract for the renovations of Old Town Square.
PSA.OTS Renovation Form_Mortenson t 1
Exhibit B
Budget Allocation and Fee
Old Town Square Renovations
Professional Services Agreement
Mortenson - CM/GC Services Preconstruction
Paragraph 4 Compensation
Hourly Billing Rates*
Project Administrative Assistant
$
33.00
Project Accountant
non -reimbursable
Justin Feigitsch, Field Engineer
$
40.00
Dan Hanavan, Project Engineer 1
$
4500
TBD, Project,Engineer 2
$
53.00
TBD, Assistant Project Manager
$
63.00
Joe Shinagle, Design Phase Manager 1 or PM1
$
66.00
TBD, Design Phase.Manager2orPM2
$
70.00
Tony Perdue, Senior Project Manager 1
$
• 74.00
TBD, Assistant Superintendent
$
59.00
TBD, Superintendent 1
$
68.00
Estimator
$
45.00
Esti mator2
$
53.00
Estimator3
$
72.00
Chief Estimator
non -reimbursable
Scheduler 1
$
56.00
Scheduler
$
64.00
Safety Engineer 1
$
44.00
Safety Engineer 2
$
56.00
Senior Safety Engineer
$
66.00
Safety Director
non -reimbursable
Integrated. Construction Coordinator 1.
$
47.00
Integrated Construction Coordinator 2
$
58.00
Integrated. Construction Manager
$
70.00
Dale Heter, Principal and Vice President
non -reimbursable
*Rates include all burden, overhead and profit. Rates are adjusted annually based on cost in March.
*Rates will be billed based on actual time allocated to the project weekly, not to exceed 40hours/week.
Reimbursables
Vehicles/rravel
Staff without vehicles/allowance
$
0.55
permile
For Staff withassigned vehicles
$
5.19
perstaff hour
.Plus travel ifapplicable
$
0.18
permile
For Staff with vehicle allowance
$
2.31
per staff hour
Plus travel ifapplicable
$
0.55
permile
Electronic Data Systems (ESA) aka Data Processing Support
All Salaried employees
$
6.00
per staff hour
PSA,OTS Renovation Form Mortenson 12
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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 `B," attached hereto :and
incorporated herein by this reference, up to a maximum amount of $42,542.00 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 $50,000.00.
5. Billing. 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. Use of Subconsultants. All subconsultants that will be performing work
hereunder must be approved in writing by the DDA prior to commencing any such work, which
approval shall not be unreasonably withheld. If any work hereunder is to be performed by a
subconsultant, the following provisions shall apply: (a) the subconsultant must be a reputable,
qualified firm with an established record of successful performance in its respective trade
performing identical or substantially similar work; (b) the subconsultant shall be required to
comply with all applicable terms of this Agreements; (c) the subconsultant's subcontract shall
not create any contractual relationship with the DDA, nor will it obligate the DDA to pay or see
to the payment of the subconsultant; and (d) work performed by the subconsultant shall be
subject to inspection by the DDA to the same extent as the work of the Professional.
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.
8. Early Termination by the DDA. Notwithstanding the term hereof, the DDA shall
have the right to terminate this Agreement at any time without cause by providing written notice
of termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior
to the termination date contained in said notice unless otherwise agreed to in writing by the DDA
and the Professional. In the event of any such early termination by the DDA, the Professional
shall be paid for services rendered prior to the date of termination, subject only to the satisfactory
performance of the Professional's obligations under this Agreement. Such payment shall be the
Professional's sole right and remedy for such termination.
PSA.OTS Renovation FDm_Mortenson 2
10. Additional Services: Changes to the Scope of Services. The DDA shall have the
right during the term hereof to request changes or additions to the Scope of Services through
written change order requests. Once the DDA has delivered notice of such change to the
Professional, no work related to the requested change shall proceed until the parties have reached
agreement regarding changes in price or scheduling requirements related to the requested
change, and a written change order documenting the agreed -upon terms is prepared and issued
by the DDA. No such changes or additions shall be considered approved, binding or
enforceable until the parties hereto have signed such change order form. The hourly rate to be
charged for any changed or added services shall be governed by the 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, Quality and Accuracy of Services. The Professional shall be
responsible for the coordination of all services between the Professional and its subconsultants.
The Professional shall be responsible for theprofessional quality, technical accuracy, timely
completion and coordination of all services rendered by the Professional and its subconsultants,
which services shall include, by way of example and without limitation, designs, plans, reports,
specifications, .and drawings, and the Professional shall, without additional ,compensation,
promptly remedy and correct any errors, omissions, or other deficiencies.
13. Independent Contractor. The services the Professional will be performing
hereunder are those of an independent contractor, and not of an agent or employee of the DDA,
nor shall the Professional's employees, agents or subconsultants be considered employees or
agents of the DDA. The DDA shall not be, responsible for withholding any portion of the
Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other
taxes or benefits or for any other purpose.
14. 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 or indirectly employed by any subconsultants to the same degree as acts
and omissions of persons the Professional directly employs. Nothing contained in this
Agreement shall create any contractual relation between any subconsultant and the DDA, except
to the extent the DDA is indemnified or insured through requirements upon said subconsultants.
15. Legal Compliance, License and Business, Requirements. The Professional shall
hold,.in the Professional's name, all licenses necessary to perform the Scope of Services, and
.PSA.OTS Renovation Fotm_Mortenson
shall have full authority to do such business in the State of Colorado. The Professional shall at all
times during the term hereof have a.designated place of business for making and accepting
communications with or from the DDA. The Professional warrants to the DDA that it shall
exercise the highest degree of competence and care, as determined by accepted standards for
work of a similar nature, in performing any services or work hereunder, and that such services
and work shall be performed in accordance with all applicable laws.
16. Insurance Requirements. The Professional shall provide and maintain during the
term hereof, at its own expense, and from insurance companies acceptable to the DDA, the
insurance coverage designated hereinafter, and shall require the same of all subconsultants
providing services in connection with this Agreement:
A. Employee Insurance. The Professional shall provide for all of its employees.
engaged in work performed under this Agreement:
i. Workers' Compensation. In accordance with the laws of the State of
Colorado.
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 and Automobile Liability Insurance.
Commercial general liability and commercial automobile liability
insurance as will provide coverage for claims for damages resulting
from bodily injury and death, as well as for claims for property
damage and loss, which may arise directly or indirectly from the
performance of work under this Agreement. Amount of coverage for
commercial general liability shall be not less than One Million Dollars
($1,000,000.00) combined single limits, per occurrence, for bodily
injury, death and property damage or loss. Amount of coverage for
commercial automobile liability shall be not less than One Million
Dollars ($1,000,000.00) combined single limits, per accident, for
bodily injury, death and property damage or loss, and coverage shall
extend to any vehicle (including owned, hired and non -owned
vehicles) used by the Professional, or with the consent of the
Professional, in connection with the performance of the Scope of
Services. The DDA shall be named on such. policy or polices as an
additional insured with primary coverage. Such policy or policies
shall contain a standard cross -liability endorsement, and shall also
contain substantially the following statement:
PSA.OTS Renovation Forrn_Mrxtemn 4
"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.
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 term or provision of this Agreement, such party may be
declared in default.
PSA.OTS Renovation Fonn_Moftenson
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)
temvnate 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
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.
.PSA.07'S Renovation FornLMortenson
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: Mortenson Construction Inc.
1621 18th Street
Suite 400
Denver, CO 80202
Attn: Dale Heter
If to the DDA: The Fort Collins, Colorado
Downtown Development Authority
Attn: Executive Director
19 Old Town Square, Suite 230
Fort Collins, CO 80524
With a copy to: Liley, Rogers & Martell, LLC
Attn: Lucia A. Liley, Esq.
300 S. Howes Street
Fort Collins, CO 80521
Notice of a change of address of a party shall be given in the same manner as all other
notices as hereinabove provided.
26. Work Product. The DDA shall own and retain all right, title and interest in and to
all reports, documents, drawings, specifications, plans, designs, and other information or work
product that are produced, created, developed or made by Professional or its subconsultants in
connection with the Scope of Services (collectively the "Work Product'), and such Work
Product shall.be the sole property of the DDA.
27. Subiect 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.
PSAATS Renovation Fomi_Mortenson
28. Successor Entity to the DDA. In the event that the legal existence of the DDA
terminates during the term of this Agreement, it is expressly acknowledged by the parties hereto
that the City is designated the DDA's successor entity, and :all rights and obligations of the DDA
set forth herein shall thereupon become the rights and obligations of the City.
29. Governing Law & Venue. The laws of the State of Colorado shall govern the
execution, construction, interpretation and enforcement of this Agreement. Should any party
hereto institute legal suit or action resulting from, arising out of or in any way connected with
this Agreement, it is agreed by the parties hereto that venue for such suit or action shall be proper
and exclusive in the District Court of Larimer County, Colorado.
30. Severability of Terms. If any term on 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 attomeys' fees and other legal expenses.
32. Prohibition Against Employing Illegal Aliens. Pursuant to C.R.S § 8-17.5-101 et
seq., the Professional represents and agrees that:
A. As of the date of execution of this Agreement:
i. The Professional does not knowingly employ or contract with an illegal alien
who will perform work under this Agreement; and
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
PSAOTS Rmovation Fmm_tortmon 8
perform work under this Agreement.
C. The Professional shall not use the a -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:
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 if during
such three days the subconsultant provides information to establish that the
subconsultant has not knowingly employed or contracted with an illegal
alien.
E. The Professional shall comply with any reasonable request by 'the Colorado
Department of Labor and Employment (hereinafter the "Department") made in
the course of an investigation that the Department undertakes or is undertaking
pursuant to the authority established in C.R.S. § 8-17.5-102 (5).
F. If the Professional violates any provision of this, Agreement pertaining to the
duties imposed by CKS § 847.5-102 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. § 8-17.57102.
G. The DDA will notify the Office of the Secretary of State if the Professional
violates this provision of this Agreement and the DDA terminates the Agreement
for such breach.
33. Integration/Survival. This contract, which includes this, Agreement' together with
any exhibits incorporated herein by reference, represents the entire and integrated agreement
between the parties hereto and supersedes all prior negotiations, representations or agreements,
whether written or oral:_ All conditions, rights, privileges, duties, covenants, warranties and
obligations contained herein shall be binding upon, inure to the benefit of, and be enforceable by;
the parties hereto, and their respective successors and assigns, and shall remain in fall force and
effect and, shall survive, to the maximum extent allowable by law, the termination, or expiration
of this Agreement.
PSAMS.Renovation Fonn_Mortenson