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HomeMy WebLinkAboutCORRESPONDENCE - AGREEMENT MISC - BLUE PENGUIN LLCOfficial Purchasing Document Last updated 10/2017 Services Agreement Page 1 of 9 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 DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 2 of 9 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. DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 3 of 9 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. DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 4 of 9 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 DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 5 of 9 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. DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 6 of 9 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 Official Purchasing Document Last updated 10/2017 Services Agreement Page 7 of 9 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. DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 8 of 9 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. DocuSign Envelope ID: 88083E7E-0FD4-4400-95FB-77FCA08CAF20 Official Purchasing Document Last updated 10/2017 Services Agreement Page 9 of 9 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