HomeMy WebLinkAboutCORRESPONDENCE - AGREEMENT MISC - BLUE PENGUIN LLCOfficial Purchasing Document
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Services Agreement
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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 Blue Penguin LLC, 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 three (3) pages and
incorporated herein by this reference.
2. Time of Commencement and Completion of Services. The services to be performed
pursuant to this Agreement shall be initiated by December 1, 2017. Services shall be
completed no later than June 1, 2018. Time is of the essence. Any extensions of the time
limit set forth above must be agreed upon in a writing signed by the parties.
3. Contract Period. This Agreement shall commence upon execution of this Agreement and
shall continue in full force and effect until December 31, 2018 unless sooner terminated as
herein provided.
4. 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 five (5) days from the onset of such
condition.
5. Early Termination by City/Notice. Notwithstanding the time periods contained herein, either
party 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 five (5) 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:
Blue Penguin LLC
Attn: Kaden Strand
2404 Evergreen Drive
Fort Collins, CO 80521
City of Fort Collins
Attn: Spencer Branson
PO Box 580
Fort Collins, CO 80522
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
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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.
6. Contract Sum. The City shall pay the Service Provider for the performance of this Contract,
subject to additions and deletions on a time and material basis not to exceed Fifty-Nine
Thousand Nine Hundred dollars ($59,900). Payment shall be made by the City based on
progress payments with invoices to be submitted not more than once per month. Payments
will be made Net 30 days from receipt of each invoice.
7. City Representative. The City has designated Spencer Branson as its representative (the
“City 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.
8. 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.
9. 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 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.
10. 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.
11. 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.
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12. 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.
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.
13. License. Upon execution of this Agreement, the Service Provider grants to the City an
irrevocable license to use and modify all "Instruments of Service." All "Instruments of
Service" (calculations, developed software, source code, etc) with the exception of 3D
building SketchUp models expressly contracted in this Agreement will be owned by the
Service Provider and available for use in future commercial projects by the Service Provider.
All "Instruments of Service" may be retained by Blue Penguin for advertising and
showcasing of work product. Notwithstanding, the Service Provider shall not use the
City’s logo without the City’s express written approval. In addition, the license granted
hereunder shall permit the City and third parties reasonably authorized by the City to
reproduce and utilize the Instruments of Service for similar projects. This license shall
survive termination of the Agreement by default or otherwise.
14. 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.
15. Remedies. In the event a party has been declared in default, such defaulting party shall be
allowed a period of five (5) 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.
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16. 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.
17. 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. 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 Exhibit B, 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.
18. 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.
19. 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.
20. 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
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Services Agreement
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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.
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.
21. 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.
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Official Purchasing Document
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THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
BLUE PENGUIN LLC
By:
Printed:
Title:
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:
DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20
12/5/2017
Kaden Strand
CEO
12/5/2017
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Services Agreement
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EXHIBIT A
SCOPE OF SERVICES
Downtown Code Visualization and Testing
Introduction:
The City of Fort Collins is currently developing new standards for Downtown addressing
architecture, urban design, historic preservation, and transitions to the adjacent
neighborhoods. This work builds off the policy set forth in the recently adopted Downtown
Plan.
During the Downtown Plan process, the City developed a 3D SketchUp model of the
Downtown area to aid in visualization and analysis of concepts explored in the Plan.
This project aims to further develop and refine the existing model in order to test and
verify code language being proposed for Downtown. In addition, the City is partnering
with CSU to evaluate key components of creating a walkable downtown, and determining
what elements are most important to the pedestrian experience.
To test concepts such as pedestrian experience and compatibility of hypothetical
development projects, the model will be experienced through virtual reality headsets to
provide proper perspective of the environment.
The project team consists of the City of Fort Collins, Colorado State University, Blue
Penguin LLC, and DHM Design.
Objective:
The primary goal of this project is to provide greater clarity on urban design standards
through the use of visualization. The model will test urban design concepts and potential
code standards, as well as verify results through the use of hypothetical development
projects. The model will also provide a platform for specific research on walkability and
the pedestrian experience.
Project Area:
The project area is the Downtown boundary identified in the 2017 Downtown Plan. Priority
areas will be designated and modeled first, then other areas will be filled in with the
remaining time and budget.
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Scope:
1. Create methodology and workflow for refining the SketchUp model in a way that
will interface with the VR technology.
2. Hire and train interns (through Blue Penguin) to refine the model to a greater
level of detail.
3. Coordinate and work with Blue Penguin, DHM Design, and interns to refine the
model to include greater articulation of existing buildings as well as development
of streetscape and site elements.
4. City and consultant team to work with local and regional architects to design
hypothetical building concepts that reflect the draft code standards.
5. Collaborate with CSU’s department of Psychology, Landscape Architecture,
Interior Design, and Health and Exercise Science to study walkability in the urban
environment.
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Schedule Milestones:
2017:
Dec. Blue Penguin to hire interns, develop workflow, begin modeling
2018:
Jan.-Feb. Refine model with increased detail and streetscape elements
Feb. – May Test concepts that would be allowed under new code.
Budget
$59,900
DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20