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HomeMy WebLinkAboutPOSITIVIE ENERGIES LLC - CONTRACT - AGREEMENT MISC - POSITIVE ENERGIES LLCPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and Positive Energies, LLC, hereinafter referred to as "Professional". 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. The Professional agrees to provide services in accordance with the scope of services attached hereto as Exhibit "A", consisting of one (1) page, and incorporated herein by this reference. Irrespective of references in Exhibit A to certain named third parties, Professional shall be solely responsible for performance of all duties hereunder. 2. Contract Period. The services to be performed pursuant to this Agreement shall be initiated within five (5) days following execution of this Agreement. This Agreement shall be effective through July 1, 2015 unless extended by mutual agreement of the parties. Time is of the essence. Any extensions of the time limit set forth above must be agreed upon in writing by the parties hereto. 3. Early Termination by City. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional. Such notice shall be delivered at least fifteen ( 15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: Professional: Professional Energies, LLC Attn: Daniel Gregory 117 E 37 Loveland, CO 80538 City: City of Fort Collins Attn: John Phelan PO Box 580 Fort Collins, CO 80522 Copy to: City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination, subject only to the satisfactory performance of the Professional's obligations under this Agreement. Such payment shall be the Professional's sole right and remedy for such termination. 4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all services rendered by the Professional, including but not limited to designs, plans, reports, specifications, and drawings and shall, without additional Professional Services Agreement Page 1 of 8 DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA compensation, promptly remedy and correct any errors, omissions, or other deficiencies. The Professional shall indemnify, save and hold harmless the City, its officers and employees in accordance with Colorado law, from all damages whatsoever claimed by third parties against the City; and for the City's costs and reasonable attorney's fees, arising directly or indirectly out of the Professional's negligent performance of any of the services furnished under this Agreement. The Professional shall maintain insurance in accordance with Exhibit B consisting of one (1) page, attached hereto and incorporated herein. 5. Compensation. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay Professional a fixed fee in the amount of $20,000. The City shall pay Professional upon successful completion of the work and delivery of a DC design with a price estimate at or below the equivalent AC design system. Upon final payment, all designs, plans, reports, specifications, drawings, and other services rendered by the Professional shall become the sole property of the City. 6. City Representative. The City has designated John Phelan as its project representative who shall make, within the scope of his or her authorit_, !! necessary a ,d ,Ao"' er aecisions wiih reference to the project. AH requests for contract interpretations, change 7. Project Drawings. Upon conclusion of the project and before final payment, the Professional shall provide the City with reproducible drawings or AutoCAD files of the project containing accurate information on the project as designed. 8. Independent Contractor. The services to Qe performed by Professional are those of an independent contractor and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 9. Personal Services. It is understood that the City enters into this Agreement based on the special abilities of the Professional and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Professional shall neither assign any responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 1 O. Subcontractors. Service Provider may not subcontract any of the Work set forth in the Exhibit A, Statement of Work without the prior written consent of the city, which shall not be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of the City), then the following provisions shall apply: (a) the subcontractor 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 subcontractor will be required to comply with all applicable terms of this Agreement, (c) the subcontract will not create any contractual relationship between any such subcontractor and the City, nor Professional Services Agreement Page 2 of 8 DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA will it obligate the City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor will be subject to inspection by the City to the same extent as the work of the Service Provider. 11. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications, reports, and incidental work or materials furnished hereunder shall not in any way relieve the Professional of responsibility for the quality or technical accuracy of the work. The City's approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement. 12. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this agreement, such party may be declared in default. 13. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non- defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs incurred because of the default. 14. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. 15. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 16. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Professional will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the "e-Verify Program") or the Department Program (the Professional Services Agreement Page 3 of 8 DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA "Department Program"), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement b. Professional shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Professionai is prohibited from using the e-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. d. If Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional shall: 1. Notify such subcontractor and the City within three days that Professional has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and the notice •~qui red fJUrsuant to thl ~ section the subcon r c·or does not cease employing or contracting with the illegal alien; except that Professional shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment (the "Department") made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Professional violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Professional shall be liable for actual and consequential damages to the City arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach. 17. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit "C" - Confidentiality, consisting of one (1) page, attached hereto and incorporated herein by this reference. Professional Services Agreement Page 4 of 8 DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney Professional Services Agreement THE CITY OF FORT COLLINS, COLORADO Gerry Paul Director of Purchasing & Risk Management POSITIVE ENERGIES, LLC ByQJ~L_ Daniel ego Chief Executive Officer Date: -.-.=3_.,...,A.....,.P-'-1<__,_,,_/5""------ P•go5of8 ~ DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA 4/24/2015 EXHIBIT A SCOPE OF SERVICES The Professional shall perform the following work: The Professional shall complete a hybrid DC power design alternative for the Utilities Administration Building (UAB) and deliver the completed design prior to May 1, 2015. The objective of the project is to develop a viable hybrid DC design for the UAB with a o al construction cost at or below the equivalent AC design system. The City shall provide Professional with reports, coordination with other project participants and such other daia as may be reasonably available to the City and required by Professional to perform the service. Deliverables (the "Deliverables") include: 1. Complete hybrid DC design and construction drawing for the UAB 2. Detailed cost estimate for construction of the hybrid DC design The City shall pay the Professional $20,000 upon delivery and acceptance of the above Deliverables. In the event the Professional does not complete the proje t prior io fVlay 1, 2015 or in the event Professional does not develop a viable hybrid DC design acceptab.e ·" the Cit:' !n !ts! se;ie d:~c rativt. fur tht;:: GAB wiUt o totai construction cost at or belo\N the equivalent ,11 ,C de igr system, the Pro1essional shail Upon final payment by the City, all designs, plans, reports, specifications, drawings, and other services rendered by the Professional shall become the sole property of the City. The Professional $hall retain all rights to intellectual property developed, utilized, or modified in the performance of the Scope of Services. Nevertheless, the City shall have a perpetual, no- cost license to use such intellectual property. Professional Services Agreement Page 6 of 8 (@ I DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA EXHIBIT B INSURANCE REQUIREMENTS 1. The Professional will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Professional shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not reduce coverage or limits and will not be cancelled, except after thirty (30) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Professional, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Professional under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Professional 's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Professional shall maintain during the life of this Agreement for all of the Professional's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. 8. Commercial General & Vehicle Liability. The Professional shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Professional shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. C. Errors & Omissions. The Professional shall maintain errors and omissions insurance in the amount of $1,000,000. Professional Services Agreement Page 7 of 8 DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA EXHIBITC CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City") pursuant to this Agreement (the "Agreement") , the Professional hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data and material (hereinafter i1dividually and collectiveiy, regardless of nature, referred to as "information") that are the property of and/or relate to the City or its employees, customers or suppliers, Which access · is related to the performance of services that the Professional has agreed to perform, the Professional hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Professional agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City, or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including b t not iimited to customers and suppliers of the City) . The Professional sha!! not disclose any such !, .forrnafa;•i ro any per'."'on r, ._.t ha-..:!ng ::: :cgiti11iate 1 1~t!U-io- k novv for purposes authorized by the City. Further) the P--""'fess=onal shali ot use such information t · a y ec o ic or other ene it or itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Professional understands that it shall have no obligation under this Agreement with respect to information and material tt:iat (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Professional shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Professional ceases to perform services for the City, or the City so requests for any reason, the Professional shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Professional understands and agrees that the City's remedies at law for a breach of the Professional's obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. Professional Services Agreement Page 8 of 8 DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 04/23/2015 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Stewart Goldenberg(0707329) PHONE IAJC No Extl: 303-988-9830 I r,e~ Nol: 303-223-6040 78491 Hwy 40 Ste 4 E·MAIL ADDRESS: sooldP.nbP.roli'ilf"lrmersaoP.ot.com INSURERfSl AFFORDING COVERAGE NAIC # Winter Park co 80482 INSURER A: Truck Insurance Exchange 21709 INSURED INSURER B: Farmers Insurance Exchange 21652 POSITIVE, ENERGIES, LLC INSURER C: Mid Century Insurance Company 21687 3508 W. EISENHOWER BLVD INSURER D: INSURER E: LOVELAND co 80401 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICYEFF POLICY EXP LTR m~o """' POLICY NUMBER LIMITS IMM/DDNYYY\ IMM/DDNYYY\ GENERAL LIABILITY EACH OCCURRENCE s 1,000,000 ~ X COMMERCIAL GENERAL LIABILITY DAMAGE PREMISES ~YE Ea Rt:occurrence) NTED s 75,000 ~ :::J CLAIMS-MADE [R] OCCUR ~ MED EXP (Any one person) - $ 5,000 A 606230105 04/21/2015 04/21/2016 PERSONAL & ADV INJURY s 1,000,000 ~ r--- GENERALAGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG s 1,000,000 rxi POLICY n P,§R-r n LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT - IEa accident) $ 1,000,000 ANY AUTO BODILY INJURY (Per person) $ A - ALL OWNED x SCHEDULED BODILY INJURY (Per accident) s AUTOS AUTOS 606230105 04/21/2015 04/21/2016 - x x NON·OWNED rp~?~.;'c~~~gAMAGE $ HIRED AUTOS _AUTOS - : $ Ir--- UMBRELLA LIAB I H OCCUR EACH OCCURRENCE s EXCESS LIAB CLAIMS-MADE I AGGREGATE $ OED I I RETENTION$ $ WORKERS COMPENSATION I r'1.%~Tf';J,~;.; I 10.r~- AND EMPLOYERS' LIABILITY Y/N 100,000 ANY PROPRIETORIPARTNERIEXECUTIVE ~ E.l. EACH ACCIDENT s B I OFFICER/MEMBER EXCLUDED? N/A A04173468000 04/05/2015 (Mandatory in NH) 100,000 E.l. DISEASE ·EA EMPLOYEE $ If yes, describe under E.L. DISEASE -POLICY LIMIT s 500,000 DESCRIPTION OF OPERATIONS below OESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) The City of Fort Collins is named as an additional insured for General Liability and Automobile Liability. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Fort Collins THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 215 N. Mason Fort Collins, CO 80523 AUTHORIZED REPRESENTATIVE Stewart Goldenberg I ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: AE05C843-37A8-4287-BB27-9C7D9F478EAA