HomeMy WebLinkAbout487599 CENTER FOR RESOURCE CONSERVATION - CONTRACT - SOLE SOURCE - CENTER FOR RESOURCE CONSERVATION (CRC)Page 1 of 12
GARDEN IN A BOX PROGRAM AGREEMENT
THIS Garden In A Box Program Agreement (“Agreement”) is made this 27th day of January
2017 (“Effective Date”), by and between the Boulder Energy Conservation Center d/b/a the
Center for ReSource Conservation ( “CRC”), a Colorado non-profit corporation, and the City of
Fort Collins (“Fort Collins”), a Colorado municipal corporation, individually referred to as a
“Party,” or collectively as “Parties.”
Recitals
1. WHEREAS many people are interested in the concept of a low-water landscape;
2. WHEREAS those interested in the concept of a low-water landscape are often overwhelmed
by the plant selection and design of such a landscape;
3. WHEREAS those interested in the concept of a low-water landscape have limited time and
money to invest in the process of planning and designing such a landscape; and
4. WHEREAS in order to provide its residents with an easy and affordable way to learn about
and install low-water landscapes, Fort Collins wishes to engage CRC to organize and
conduct the Garden In A Box Program (“Program”) for the term specified in Section III in
partnership with Fort Collins.
NOW THEREFORE, in consideration of the terms and conditions contained herein and
other good and valuable consideration, the Parties agree as follows:
I. Program Obligations:
A. CRC Obligations
CRC shall provide the services described in the Garden In A Box Program Scope and
Conditions of Work, attached hereto and incorporated by this reference as Attachment A
(“Services”).
B. Fort Collins Obligations
1. Publicity. Fort Collins shall be responsible for publicizing the availability of the
Program to its Customers in one or more rounds of marketing. Efforts to publicize the
Program may include but are not limited to advertising mediums such as the City of
Fort Collins’ website, social media, bill inserts, newsletter and direct mailing. If only
one round will take place, the marketing must be in the form of a water bill insert.
CRC will develop a marketing “Toolkit” containing these advertisement mediums and
individual advertisement components for Fort Collins to use. Fort Collins and CRC
will create a mutually agreed upon timeline, known as the “Marketing Calendar”
which will state the dates on which both Fort Collins and CRC will disseminate the
chosen advertisements. Advertising content may be created by either party, subject
to approval by Fort Collins, however Fort Collins must use the “Toolkit” components
(i.e. verbiage, logos, photographs) for Program advertisements.
In the event that a sufficient number of requests exist, detailed in Attachment A, as
determined by CRC, and all rounds of advertising have not been completed, CRC
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may waive the requirement that Fort Collins conduct an additional advertising round.
CRC shall provide Fort Collins with notice of any such waiver.
2. Complete and Submit Signed Agreement and Attachments. Fort Collins shall submit
to CRC a signed copy of the Agreement and the Attachments no later than February
1st, 2017.
II. Price, Payment Amount, and Billing Procedure
A. Payment of Program Price. Fort Collins shall pay CRC the Program Price, pursuant to
the Garden In A Box Program Payment Schedule and Terms, attached hereto and
incorporated by reference as Attachment B.
III. Term
B. Term of Agreement. The Term of this Agreement commences on the Effective Date
and terminates on December 31, 2017 or on the date the Agreement is earlier
terminated, as provided herein. In addition, at the option of the City, the Agreement may
be extended for additional one year periods not to exceed four (4) additional one year
periods. Renewals and pricing changes shall be negotiated by and agreed to by both
parties. Written notice of renewal shall be provided to the Service Provider and mailed
no later than thirty (30) days prior to contract end.
IV. General Provisions
A. Record Keeping Requirements. CRC and Fort Collins shall maintain all records,
documents, communications, and other material that pertain to this Agreement
(“Records”) for a period of three (3) years from the date of final payment under this
Agreement, unless CRC or Fort Collins requests that the records be retained for a longer
period. CRC and Fort Collins each shall provide access to such Records to the other
during normal business hours for review and copying.
B. No Delegation. Except as otherwise provided, the Parties’ duties and obligations shall
not be assigned, delegated, or subcontracted except with the express prior written
consent of the other Party. All subcontractors shall be subject to the requirements of this
Agreement.
C. Indemnification.
CRC shall hold harmless and indemnify Fort Collins, its officers, directors, and
employees from and against losses, liabilities, expenses, and costs, including, without
limitation, reasonable attorney’s fees and costs, arising out of (i) the negligent
performance of Services under this Agreement by the CRC or any person employed by
the CRC; or (ii) any injury to persons or property to the proportional extent caused by the
negligent or intentional acts or omissions of CRC or any person employed by the CRC.
D. No Third Party Rights. Except as otherwise provided, this Agreement shall inure to the
benefit of, and be binding only upon, the Parties hereto and their respective successors
and assigns. No third party beneficiary rights or benefits of any kind are expressly or
impliedly provided herein.
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E. Designated Representatives. For the purpose of this Agreement, the persons named
below are designated the representatives of the Parties. Unless otherwise provided in
this Agreement, all notice required to be given by the Parties shall be given either by
hand delivery or e-mail, with confirmed receipt, or by registered or certified mail to the
representative named below. The Parties may designate in writing a new or substitute
representative:
For the Center for ReSource Conservation:
Neal Lurie
President
Center for ReSource Conservation
2639 Spruce Street,
Boulder, CO 80302
o) 303-999-3820, ext 202
fax) 303-440-0703
E-mail: nlurie@conservationcenter.org
For Fort Collins:
Crystal Shafii
Program Coordinator
City of Fort Collins
222 Laporte Avenue
o) 970-221-6796
fax) 970-416-2208
Email. cshafii@fcgov.com
F. Default and Remedies. 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.
In the event either Party fails to comply with this Agreement, the other Party shall
provide notice specifying the breach, and the breaching party shall be allowed thirty (30)
days to cure, or such longer period if the cure will require additional time and so long as
the breaching party is diligently acting to complete the cure. In the event the breaching
party fails to cure the breach, within the time allowed hereunder, the non-breaching party
shall have all remedies available in law or in equity.
G. Modifications. This Agreement is intended as the complete integration of understanding
between the Parties. Both Parties may make modifications to this Agreement as
needed, provided that no modification may be made to the number of gardens requested
by Fort Collins, as specified in Attachment A for 2017 and as specified in renewal letters
for subsequent years, and guaranteed to be provided by CRC. Such modification shall
not be effective until it is accepted in writing by a legally authorized representative of
each Party.
H. Severability. The terms of this Agreement are severable, and should any term or
provision hereof be declared invalid or become inoperative for any reason, such
invalidity or failure shall not affect the validity of any other term or provision hereof. The
waiver of any breach of a term hereof shall not be construed as a waiver of any other
term or the same term upon subsequent breach.
I. Exhibits. All exhibits hereto shall be deemed incorporated herein by reference.
J. Independent Contractor. CRC shall perform the Services under this Agreement as an
independent contractor and the parties do not intend, nor shall it be construed that CRC
or any CRC subcontractor or employee is an employee of Fort Collins for any purposes
whatsoever.
K. Indemnity/Insurance.
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1. 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.
2. The Service Provider shall take all necessary precautions in performing the work
hereunder to prevent injury to persons and property.
3. Without limiting any of the Service Provider's obligations hereunder, the Service
Provider shall provide and maintain insurance coverage naming the City as an
additional insured under this Agreement of the type and with the limits specified
within Attachment C, consisting of one (1) page, attached hereto and incorporated
herein by this reference. The Service Provider before commencing services
hereunder shall deliver to the City's Purchasing Director, P. O. Box 580, Fort Collins,
Colorado 80522 one copy of a certificate evidencing the insurance coverage required
from an insurance company acceptable to the city.
L. Employee Financial Interest. The Parties aver that to their knowledge, no employee of
Fort Collins has any personal or beneficial interest whatsoever in the service or property
described herein.
M. Representations and Warranties. CRC and Fort Collins each make the following specific
representations and warranties, each of which was relied on by the other in entering into
this Agreement.
1. Legal Authority – Signatory. Each Party warrants that it possesses the legal
authority to enter into this Agreement and that it has taken all actions required by its
procedures, by-laws, and applicable laws to exercise that authority, and to lawfully
authorize its undersigned signatory to execute this Agreement, or any part thereof,
and to bind itself to its terms. If requested by the other Party, each Party shall
provide the other with proof of its authority to enter into this Agreement within 15
days of receiving such request.
2. Compliance with Laws. CRC shall at all times observe and comply with all laws,
ordinances, and regulations of the state, federal, local, and city government, except
as explicitly provided herein, which may, in any manner, affect the performance of
the Agreement as well as the requirements of any agreements, permits, or other
contracts between CRC and third parties governing the performance of the Services
hereunder and disclosed to CRC.
3. Personal Services. It is understood Fort Collins enters into this Agreement based on
the special abilities of CRC and this Agreement shall be considered as an agreement
for personal services. Accordingly, CRC shall neither assign any responsibilities nor
delegate any duties arising under this Agreement without the prior written consent of
Fort Collins.
N. Choice of Law. Colorado law, and rules and regulations issued pursuant thereto, shall
be applied in the interpretation, execution, and enforcement of this Agreement. Any
provision included or incorporated herein by reference which conflicts with said laws,
rules, and regulations shall be null and void. Any provision incorporated herein by
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reference which purports to negate this provision in whole or in part shall not be valid or
enforceable or available in any action at law, whether by way of complaint, defense, or
otherwise. Any provision rendered null and void by the operation of this provision shall
not invalidate the remainder of this Agreement, to the extent capable of execution.
Venue shall be in the District Court, Larimer County, Colorado.
O. Force Majeure: A “Force Majeure” event may make it impossible for CRC to perform its
obligations under this Agreement. As used in this Agreement, Force Majeure means
acts of God; acts of the public enemy; acts of any governmental entity in its sovereign or
contractual capacity; fires; flood; epidemic; quarantine restrictions; freight embargoes; or
unusually severe weather which make it impossible to perform the obligations imposed
by this Agreement. Events leading to delivery delays of less than sixty days from the
scheduled delivery date shall not be considered Force Majeure events. If a Force
Majeure event occurs that prevents CRC’s performance, CRC shall provide written
notice to Fort Collins within 24 hours of learning about the event. Such an event shall
excuse CRC from performing its obligations under this Agreement. However, provided
CRC is otherwise ready, willing, and able to perform as described herein, such an event
shall not excuse Fort Collins’s obligation to pay the plant material portions of the Base
Program Price and any additional units and distributions. In no event shall Force
Majeure act to extend the Term of Agreement unless otherwise agreed by the Parties in
writing.
P. Intellectual Property Rights. CRC shall retain ownership of all data generated pursuant
to the Program, and it may use that data to generate reports summarizing the Program
to educate the public, including policy makers, green industry partners, and
homeowners. This report and any data collected may also be presented to CRC
partners.
Q. Termination. CRC may terminate this Agreement with or without cause by providing
thirty (30) days advance notice to Fort Collins. Such termination by CRC shall not affect
Fort Collins’s obligation to compensate CRC for work completed pursuant to this
Agreement, up to and including the date of termination specified in such notice.
R. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et.
seq., CRC represents and agrees that:
a. As of the date of this Agreement:
1. CRC does not knowingly employ or contract with an illegal alien who will
perform work under this Agreement; and
2. CRC 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.
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b. CRC 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. CRC 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 CRC obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an illegal alien, CRC shall:
1. Notify such subcontractor and the City within three days that CRC 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 CRC 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. CRC 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 CRC 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, CRC shall be liable for actual and consequential
damages to the City arising out of CRC’s violation of Subsection 8-17.5-102, C.R.S.
g. The City will notify the Office of the Secretary of State if CRC violates this provision
of this Agreement and the City terminates the Agreement for such breach.
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IN WITNESS WHEREOF, each Party has executed this Memorandum of Agreement or caused
it to be executed on its behalf by its duly authorized representatives.
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
CENTER FOR RESOURCE CONSERVATION
By:
Printed:
Title:
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:
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Neal Lurie
2/1/2017
President
Assistant City Attorney
2/4/2017
City Clerk
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ATTACHMENT A
GARDEN IN A BOX PROGRAM
SCOPE OF WORK
I. Scope of Work
A. Design and Ordering of Gardens
1. Garden Design. CRC shall work with landscape designers to create at least 3 xeric
garden designs, which shall be made available to Fort Collins residents. Once
those designs have been completed, CRC shall work with nurseries to secure
plants. If necessary, CRC shall select appropriate substitute plants.
The gardens shall be assembled into kits, which shall include a design layout
(including CRC’s “Plant by Number” design), a variety of xeric plants, and helpful
tips about xeric gardening, including planting and maintenance instructions for all of
the plants. (“Gardens In A Box”)
2. Ordering. Fort Collins shall order, and CRC shall provide, a minimum of one
hundred (100) Gardens In A Box for the spring garden sale season, March-June
2017. Subject to availability, CRC shall order additional gardens as specified by Fort
Collins.
CRC shall have the number of Gardens In A Box ordered by Fort Collins available
for Fort Collins residents to order at the rate specified in section I.A.1 of the
Payment Schedule and Terms.
B. Marketing, Customer Service, and Sales
1. Marketing of Program. CRC may design and pay for the placement of
advertisements in a local newspaper, and write and disseminate press releases and
public service announcements publicizing the Program. CRC shall also design and
pay for a garden catalog relating to the Program, which Fort Collins may make
available to its customers.
2. Customer Service. CRC shall handle all incoming phone-calls and e-mails
regarding the Program and respond to all questions.
3. Sales. CRC shall create and manage an online retail platform. CRC shall also
process orders and take payment via cash, check, and credit card.
C. Distribution of Gardens In A Box
1. Garden In A Box Assembly. CRC shall organize and handle delivery of all plants,
which shall be pre-packaged according to the designs developed by CRC.
2. Training of Fort Collins Staff. CRC shall train Fort Collins staff, if Fort Collins elects
to provide staff to aid in the distribution.
3. Distribution. CRC shall conduct the number of distributions specified by Fort Collins.
Before the distribution(s), CRC staff and volunteers shall prepare and organize all
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plants required for the distribution(s). CRC shall organize volunteers to help
distribute Gardens In A Box at each requested distribution location.
CRC shall provide at least one staff member and one volunteer to conduct the
distribution(s). CRC staff and/or volunteer(s) shall confirm that customers have pre-
ordered and pre-paid for their Garden In A Box. CRC staff and/or volunteer(s) shall
then assist customers in retrieving their requested Garden In A Box. At that time,
CRC staff and/or volunteer(s) shall give the customer the planting and care guides
for their requested Garden In A Box.
4. Undistributed Plants. If, after a distribution is completed, there remain undelivered
Gardens In A Box, CRC shall make all reasonable efforts to include those Gardens
In A Box in a later distribution requested by Fort Collins, if any. If no future
distribution is planned, CRC shall make all reasonable efforts to sell any remaining
plants individually. Regardless of CRC’s ability to sell undistributed Gardens In A
Box or individual plants, Fort Collins is still obligated to pay the Base Program Price
and any additional charges associated with Fort Collins requested number of
distributions and Gardens In A Box, as specified in the Garden In A Box Scope of
Work, attached hereto as Attachment A, and the Garden In A Box Program Payment
Schedule and Terms, attached hereto as Attachment B.
5. Time of Distributions. All distributions requested by Fort Collins shall be conducted
during the period from May 6th, 2017 to June 10th, 2017.
D. Program Updates
1. Bi-Weekly Updates. During peak garden sales season, between March 1st, 2017
and June 1st 2017, CRC shall provide to Fort Collins updates about the Program on
at least a bi-weekly basis.
2. Updates Upon Request. Updates shall also be provided to Fort Collins within seven
(7) days of any request.
3. Contents of Updates. Both regularly scheduled and requested updates shall
include a summary of CRC’s progress in meeting its obligations under the
Agreement. This includes the number of gardens distributed at the time of the
update, and the percentage of the gardens requested by Fort Collins that this
represents.
E. Post-Distribution Activities
1. Customer Satisfaction Surveys. After the Program Term has ended, CRC shall
conduct a customer satisfaction survey of all customers purchasing Gardens In A
Box.
2. Final Report. CRC shall also compile information about the Program. The survey
results and the Program information shall be included in a final report detailing the
Program results. CRC shall provide Fort Collins with this report by December 31,
2017.
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ATTACHMENT B
GARDEN IN A BOX PROGRAM
PAYMENT SCHEDULE AND TERMS
I. Payment Terms
A. Base Program Price
1. Price Charged to Fort Collins’s Residents. Five garden designs shall be made
available for Fort Collins’s residents to choose from. The five options shall cost
$79-$124 for water customers of Fort Collins. CRC shall make all good faith efforts
to keep the price charged to Fort Collins’s residents below retail cost.
2. Price Charged to Fort Collins. To make the Garden In A Box Program available to
Fort Collins in the spring of 2017, Fort Collins shall pay a base program price of
$5,800 (“Base Program Price”).
3. Services Included in Base Program Price. The Base Program Price covers a
portion of CRC’s costs associated with managing and organizing the program as
outlined in the Garden In A Box Scope of Work. In addition, the Base Program
Price includes one hundred (100) discounts of $25 each for customers purchasing
gardens during the spring season, March-June, 2017, who receive water through
service provided by Fort Collins. The Base Program Price also includes one (1)
distribution within 15 miles of the Fort Collins service area at mutually agreed upon
locations.
B. A la Carte Prices
1. Additional Gardens and Distributions. Fort Collins may order more gardens than
the minimum order of one hundred (100) gardens and will pay for the additional $25
discounts.
C. Liability for Cost of Unsold Gardens.
1. Costs Associated with Minimum Garden Order. Fort Collins shall not be liable for
the costs associated with unsold gardens that are part of the minimum order of one
hundred (100) gardens.
2. Costs Associated with Additional Garden Order. Fort Collins shall pay $25 per any
garden ordered in excess of the 100 garden minimum, which remains unsold on
June 30, 2016.
3. No Refund. CRC shall not provide a refund to Fort Collins for any unsold gardens.
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II. Payment Schedule and Invoicing
A. Invoicing. CRC shall bill Fort Collins for all work completed pursuant to the Agreement.
Payment shall be due within thirty (30) days of the date the invoice is issued by CRC.
Said invoice shall be issued upon Fort Collins’s submission to CRC of a signed version
of the Agreement.
B. Payment Deadlines. For purposes of these payment deadlines, a payment shall be
deemed to have been made upon the date of its actual receipt by CRC.
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ATTACHMENT C
INSURANCE REQUIREMENTS
1. The Service Provider 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 Service Provider 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 Service Provider, 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 Service Provider under this
Agreement. The City, its officers, agents and employees shall be named as additional
insureds on the Service Provider '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 Service Provider shall
maintain during the life of this Agreement for all of the Service Provider'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.
B. Commercial General & Vehicle Liability. The Service Provider 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 Service Provider 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.
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New insurance