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HomeMy WebLinkAbout473776 GALE WHITMAN - CONTRACT - SOLE SOURCE - GALE WHITMANServices Agreement SS2016 Page 1 of 6 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 GALE WHITMAN, hereinafter referred to as "Service Provider". 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 Service Provider 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. 2. Contract Period. This Agreement shall commence upon signing, and shall continue in full force and effect until May 1, 2016, unless sooner terminated as herein provided. 3. 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 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 Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. 4. Early Termination by City/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 Service Provider. 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: Service Provider: City: Copy to: Gale Whitman 311 E Plum St. Fort Collins, CO 80524 Lincoln Center Attn: Ellen Martin 417 W Magnolia Street Fort Collins, CO 80521 City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy for such termination. 5. Contract Sum. The City shall pay the Service Provider for the performance of this Contract, subject to additions and deletions provided herein, as per the attached Exhibit “A”, consisting of one (1) page, and incorporated herein by this reference. DocuSign Envelope ID: 350D4538-A9EC-4F9E-9FE2-BCCB076C98B6 Services Agreement SS2016 Page 2 of 6 6. 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. 7. Independent Service Provider. The services to be performed by Service Provider 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 Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 8. Subcontractors. Service Provider may not subcontract any of the work set forth in the Exhibit A, Scope of Services, 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 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. 9. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City, and any such attempted assignments or delegation shall be null and void. 10. Acceptance 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. 11. Warranty. a. Service Provider 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 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. DocuSign Envelope ID: 350D4538-A9EC-4F9E-9FE2-BCCB076C98B6 Services Agreement SS2016 Page 3 of 6 c. Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City-furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired or replaced by Service Provider in a manner and at a time acceptable to City. 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 thereof. 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. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. The Service Provider will maintain vehicle insurance coverage for any automobile used by the Service Provider in the performance of this work. If the Service Provider chooses to obtain insurance to cover any other potential liability hereunder, such insurance shall name the City as an additional insured, and the Service Provider shall deliver to the City's Director of Purchasing, P. 0. Box 580 Fort Collins, Colorado 80522 one copy of a certificate evidencing such insurance coverage. DocuSign Envelope ID: 350D4538-A9EC-4F9E-9FE2-BCCB076C98B6 Services Agreement SS2016 Page 4 of 6 16. Entire Agreement. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. 17. 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. 18. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that: a. As of the date of this Agreement: 1. Service Provider does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Service Provider will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the “e-Verify Program”) or the Department Program (the “Department Program”), an employment verification program established pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Service Provider 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. Service Provider 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 Service Provider obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Service Provider shall: 1. Notify such subcontractor and the City within three days that Service Provider has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Service Provider 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. DocuSign Envelope ID: 350D4538-A9EC-4F9E-9FE2-BCCB076C98B6 Services Agreement SS2016 Page 5 of 6 e. Service Provider 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 Service Provider 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, Service Provider shall be liable for actual and consequential damages to the City arising out of Service Provider’s violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Service Provider violates this provision of this Agreement and the City terminates the Agreement for such breach. CITY OF FORT COLLINS, COLORADO a municipal corporation By:_______________________________ Gerry Paul Purchasing Director ATTEST: _________________________________ City Clerk APPROVED AS TO FORM: ________________________________ Assistant City Attorney GALE WHITMAN By:_______________________________ DocuSign Envelope ID: 350D4538-A9EC-4F9E-9FE2-BCCB076C98B6 2/23/2016 Services Agreement SS2016 Page 6 of 6 EXHIBIT A SCOPE OF SERVICES The Service Provider is to be paid a percentage of sales to solicit ad sales to a targeted list of businesses and individuals, with a minimum goal of $2,500 in gross ad sales. The following commission scale is offered as an incentive for increased sales:  $0-$2,500: 20% commission to Service Provider; 80% commission to the City of Fort  Collins  $2 501-$5,000: 30% commission to Service Provider; 70% commission to the City of Fort Collins  $5,001 and above: 40% commission to Service Provider on all ad sales; 60% to the City of Fort Collins The City will provide a list of potential businesses for the Service Provider to contact, along with sample brochures from last year, with an information sheet of ad process and sizes, and a sales agreement for participating businesses. The Service Provider is encouraged to solicit additional potential advertisers not on the list. The Service Provider will secure agreements for camera-ready print ads, arrange for payments to be made through the City by check or credit card, and communicate with the City’s Lincoln Center Visual Arts staff as sales are secured. Advertising in Lincoln Center publications must NOT include or constitute the following: 1) advertising that primarily conveys a political, religious, ideological or other noncommercial message; 2) advertising of alcohol or tobacco products or other products or services available only to adults by law; 3) advertising that promotes illegal activities or transactions, that are misleading or deceptive, or constitutes a public nuisance; 4) advertising of any product or service primarily related to sexual or violent activities, or advertising of any product or service in a manner that is sexually suggestive, that displays or suggests violence, or is inappropriate for minors. All ads are subject to the City’s review and approval. In the event that the City determines an ad does not meet the City’s standards, such advertisement shall be rejected at the City’s sole determination and no commission will be credited to the Service Provider. All ad sales must be secured, with print ad materials and final payments received by the City by April 8th, 2016. The commissions are to be paid upon final receipt by the City of ad payments by advertising businesses. DocuSign Envelope ID: 350D4538-A9EC-4F9E-9FE2-BCCB076C98B6