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HomeMy WebLinkAboutresolution.council.034-09RESOLUTION NO. Series of 2009 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A GYMNASTICS SERVICE AGREEMENT, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there exists between the City of Aspen and ASPEN GYMNASTICS LLC a mutual interest in providing Recreational Gymnastic activities at the Red Brick Recreational Facility; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves this Service Agreement for the operation of Gymnastics; and does hereby authorize the Mayor or City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 8th day of June , 2009. (i ~ ~1 I, Kathryn S. Koch, duly appointed and acting City Clerk do cet~tify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day h einabove stated. Kathryn S. Ko ,City Clerk C:\Documents and Settings\jackiel\Local Settings\Temporazy Internet Files\Content.Outlook\G6CRTE49\Resolution.doc SERVICE AGREEMENT THIS AGREEMENT made this _ day of , 2009, by and between the City of Aspen ("City")and the Contractor identified hereinbelow. WITNESSETH, that whereas the City wishes to purchase the services described hereinbelow and Contractor wishes to provide said services to the City as specified herein. NOW THEREFORE, in consideration of the following covenants, the parties agree as follows: CONTRACTOR NAME: John Bakken/Aspen Gymnastics, LLC, ADDRESS: P O Box 12064 Aspen, CO 81612 CONTACT PERSON: John Bakken PHONE NUMBERS: HOME: WORK: 970-309-4855 SOCIAL SECURITY NUMBER OR FEDERAL I.D. NUMBER: DESCRIPTION OF SERVICE Recreational Gymnastics Program to include but not limited to: instructional classes, team workouts, accompanying of teams [o meets, recommendations of new equipment purchases, proper use and maintenance of equipment, hiring of additional Instructors as needed and appropriate training as needed. Responsible for all necessary affiliations and certifications needed to safely maintain a gymnastics program. DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED This agreement shall run consecutive years beginning September 1, 2009. The agreement shall automatically renew annually unless changes are in writing, dated, and signed by each party. This agreement may be terminated in writing with 60 days prior written notice to the other party. The schedule of services may be flexible to accommodate demand. DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION Aspen Gymnastics, LLC shall be responsible for the operation of the Gymnastics program located at the Red Brick Arts and Recreation Center. This includes registration, collection of monies, and payment to instructors. Fees for services will be established by Aspen Gymnastics, LLC. Registration will be approved by the City of Aspen Recreation Division. All changes to the fees charged by Aspen Gymnastics LLC shall be approved by the Aspen City Council before they are implemented. The City Council shall not unreasonably withhold its approval of any increase proposed by Aspen Gymnastics if it can be shown to the satisfaction of the Aspen City Council, in its sole discretion, that the changes in fees are warranted due to an increase in operational costs of providing gymnastics programming as set forth in this Agreement. The City of Aspen will charge Aspen Gymnastics, LLC $25.00 per hour for use of the gym to be reevaluated annually and subject to CPI increase (See Exhibit "A"). The City of Aspen shall provide the Gymnastics program space and supply and maintain the equipment. The terms of billing for Aspen Gymnastics are net 30 days. A bill is submitted to Aspen Gymnastics by the 10`h of the following month. Aspen Gymnastics has 30 days to bring up any discrepancies in writing (email- date stamped). The discrepancies will be handled as soon as possible. The amount of the discrepancy can C:\Documents and Settings\jackiel\LOCaI Settings\Temporary Int~r2et Files\Con[ent.0utlook\G6CRTE49\Gymnastics Service Agreement doc.doc be subtracted from the rest of the month's bill until there is an agreement on the billing difference. The rest of the month's bill must be paid in full to avoid the 1.5% month interest payment. SCHEDULING OF RED BRICK GYM Aspen Gymnastics, LLC and the City of Aspen will schedule the use of the Red Brick Gym on a monthly basis. All schedule changes must be approved the Red Brick staff five days prior to the change, including private lessons. Gymnastics clinics and gymnastics meets must be scheduled and approved by the Red Brick staff two months prior to the events. Additional Gym time: The City agrees to make available to Aspen Gymnastics, if they request, any additional time that is not scheduled for any other activities. The same rates will apply. The City reserves the right, no matter who has rented or contracted for the gym, to use the gym for what the City determines is the highest and best use. If Aspen Gymnastics gym time is allocated to others, the City may offer alternative gym time or compensation. Reasonable notice will be provided regarding changes in gym allocations. Aspen Gymnastics will notify the City for any gym time that they will not need for the following Monday through Sunday by Thursday at noon of every week. If the City is able to rent the gym to another user group, Aspen Gymnastics will not be charged for that gym time. If both the City and Aspen Gymnastics determine that the gym time cannot be utilized due to circumstances beyond the control of either entity, then the gym time will not be charged to Aspen Gymnastics. C:\DOCUments and Set[ings\jackiel\LOCaI Settings\Temporary Int~rfjet Files\Content.Outlook\G6CRTE49\Gymnas[ics Service Agreement doc.doc Please'nvo'ce usine Citv'S Purchase Order Number: AMENDMENTS TO GENERAL CONDITIONS Exhibit "A" Gymnastics Equipment 1 - Stratum Floor Exercise system and carpet 1 - Power Trak Trampline 1 - Standard Trampoline 1 - All Elite Uneven Bars 1 - AAI Uneven Bars 1 - AAI Elite Beam 3 - AAI Standard Beams 2 - Low Beams 1 - AAI Vault Table 5 - 16 inch Carolina Resi Mats 1 - 8x16 Resi Mat (extra large) 2 - 5x10 Resi Mats 9 - 5x10x8 landing mats 4 - 7x16 Beam Mats 5 - 7x12 Bar Mats 4 - 5x8 Mini Bar Mats 10- Panel Mats 5 - Sting Mats 1 - New Vault Board 3 - Old Vault Boards 1 - Set Norbert Spotting Blocks 1 - Vault Runway 1 - Vault Zone Safety Mat 1 - Power Trak Vault 2 - Sets of Rings/webbing/cables 1 - Old Poma Horse 1 - Old Gym Master Parallel bars 1 - Training Bar 1 - Mini Trampoline Variety of shaped mats for tots C:\DOCUments and Settings\jackiel\Local Settings\Temporary Int~rf~t Files\COnten[.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is appended hereto as Appendix "A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. City of A en: Contractor: gy; ~ C ~~5 gy; ~• Title' er Serv-981.doc Operator, Aspen Gymnastics, LLC H:\Red-Yellow Brick\Red Brick\Gymnastics Service Agreement dd~.Qoc EXHIBIT "A" CALCULATION OF CHANGES IN URBAN INDEX The term "Urban Index' used herein shall refer to the consumer Price Index -All Urban Consumers (CPI-U), U.S. City Average, All Items (1967 = 100) compiled by the United States Department of Labor, Bureau of Labor Statistics. Byway of identification, the parties agree that the CPI-U index number for July 1993 = 432.6. If at the time of computation of rental increases as provided below the Urban Index as defined is not then being currently published, the parties shall mutually select a substitute index which has historically approximated the Urban Index as defined. The parties further agree that the methodology they will use for calculating index changes in the Urban Index is that described in the instruction sheet from the Bureau of Labor Statistics, U.S. Department of Labor, which reads as follows: CALCULATING INDEX CHANGES Movements of the indexes from one month to another are usually expressed as percent changes rather than changes in index points, because index point changes are affected by the level of the index in relation to its base period while percent changes are not. The example in the accompanying box illustrates the computation of index point and percent changes. Percent changes for 3-month and 6-month period are expressed as annual rates and are computed according to the standard formula for compound growth rates. These data indicate what the percent change would be if the current rate were maintained fora 12-month period. INDEX POINT CHANGE CPI 315.5 Less previous index 303.5 Equals index point change 12.0 PERCENT CHANGE Index Point difference 12.0 Divided by the previous index 303.5 Equals 0.040 Results multiplied by one hundred 0.040 x 100 Equals percent change 4.0 C:\DOCUments and Se[tings\jackiel\LOCaI Settings\Temporary In[~rrTRt Files\Content.0u[look\G6CRTE49\Gymnastics Service Agreement doc.doc EXHIBIT "A" CITY OF ASPEN FOR These General Conditions have been prepared by the City of Aspen to be incorporated by reference into Service Agreements entered into between service providers ("Contractor") and the City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the Service Agreement customarily used by the City of Aspen to contras for services. A change in one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed to by the Contractor and the City shall be specifically noted on the Service Agreement. C:\DOCUments and Set[ings\jackiel\LOCaISettings\Temporary Interne[ nfes\Content.Outlook\GfiCRTE49\Gymnas[ics Service Agreement doc.doc 1. Completion. Contractor shall commence the provision of services as described in the Service Agreement in a timely manner. Upon request of the City, Contractor shall submit, for the City's approval, a schedule for the performance of Contractor's services which shall be adjusted as required. This schedule, when approved by the City, shall not, except for reasonable cause, be altered by the Contractor. 2. Payment. In consideration of the services provided, Contractor shall pay the amounts set forth in the Service Agreement. 3. Non-Assienability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Contractor of any of the responsibilities or obligations under this agreement. Contractor shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractor's officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Contractor to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any subcontractor unless agreed to in writing beforehand by the City. 4. Termination. The Contractor or the City may terminate this Agreement upon thirty (30) days notice, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. The City shall have the right to terminate the Service Agreement upon three (3) days notice if Contractor fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7, 10, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agree- ment, City may terminate the Service Agreement with ten (10) days prior notice to cure and failure by Contractor to so cure. No compensation shall be earned after the effective date of the termination. Notwith- standingthe above, Contractor shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Contractor, and the City may withhold any payments to the Contractor for the purposes of set-off until such time as the exact amount of damages due the City from the Contractor may be determined. 5. Covenant Asainst Contineent Fees. The Contractor warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. C:\Documents and Settings\jackiel\Local Settings\Temporary Internet Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc 6. Eauipment. Materials and Supplies. Unless otherwise agreed to by the City, Contractor shall acquire, provide, maintain, and repair at Contractor's expense such equipment, materials, supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with the Service Agreement. (The City agrees to provide and maintain the equipment identified in attachment "A"under this contract) 7. Contract Monitorins. Contractor agrees to allow City to reasonably monitor the services to be provided in accordance with the Service Agreement. 8. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Contractor shall be, and shall perform as, an independent contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Contractor. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Contractor. Contractor shall be solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants and subcontractors during the performance of this contract. Contractor shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Contractor and/or Contractor's employees engaged in the performance of the services agreed to herein. 9. Indemnification. Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Service Agreement, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, profes- sional error, mistake, negligence, or other fault of the Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or which arises out of any workmen's compensation claim of any employee of the Contractor or of any employee of any subcontractor of the Contractor. The Contractor agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. The Contractor also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or C:\Documents and Settings\jackiel\LOCaI Settings\Temporary Internet Files\Con[ent.Dutlook\G6CRTE49\Gymnastics Service Agreement doc.dac demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Contractor for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 10. Contractor's Insurance. (a) Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to Section 9 above. Such insurance shall be in addition to any other insurance requirements imposed by the Service Agreement or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Contractor shall procure and maintain Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under the Service Agreement, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements ofthis paragraph. (c) If the Service Agreement requires any insurance in addition to that referenced above at subsections (a) and (b), or a particular type of coverage, Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverage referenced in the Service Agreement. All insurance coverage shall be procured and maintained with forms and insurance acceptable to the City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to Section 9 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (d) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policies required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. C:\DOCUments and Se[tings\jackiel\LOCaISeaings\Temporary IntecFet Files\Con[ent.0utlook\G6CRTE49\Gymnastics Service Agreement doc.doc (e) The certificate of insurance provided by the City shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify the Service Agreement and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (f) Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of contrail upon which City may terminate the Service Agreement as provided by Section 4 above, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against monies due to Contractor from City. (g) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (h) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protection provided by the Colorado Governmental Immunity Act, Seilion 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 11. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverage offered by CIRSA. City shall provide Contractor reasonable notice of any changes in its membership or participation in CIRSA. 12. Waiver of Presumption. The Service Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Service Agreement. 13. Certification ResardinR Debarment, Suspension, Inelisibility. and Voluntary Exclusion. Contractor certifies, by acceptance of the Service Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or C:\DOCUments and Set[ings\jackiel\Local Settings\Temporary In[eFget Files\Conten[.Outlook\G6CRTE49\Gymnas[ics Service Agreement doc.doc State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that vendor or any lower tier participant was unable to certify to this statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 14. Warranties Against Contingent Fees. Gratuities Kickbacks and Conflicts of Interest. Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. Contractor represents that no official, officer, employee or representative of the City during the term of the Service Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of the Service Agreement. In addition to other remedies it any have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel the Service Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Contractor, vendor, orsub-contractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor; and 4. Recover such value from the offending parties. 15. Termination for Default or for Convenience of Citv. The services contemplated by the Service Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. C:\DOCUments and Set[ings\jackiel\Local Settings\Temporary Inte(~et Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc 16. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If the Service Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the Service Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of the Service Agreement. 17. City Council Approval. If the Service Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 18. Notices. Any written notices as called for herein may be hand delivered or mailed by certified mail, return receipt requested to the respective person or address listed for the Contractor in the Service Agreement. 19. Non-Discrimination: penalty. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Contractor agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 20. Citv of Aspen Procurement Code. Notwithstanding anything to the contrary contained herein or in the Contrail Documents, the Service Agreement shall be subject to the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code. 21. Compliance With All Laws and Re>;ulations. Contractor shall give all notices and comply with all laws, regulations, and ordinances applicable to the provision of the services contemplated by the Service Agreement. Contractor shall obtain all necessary business licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons engaged in business within the City limits. 22. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of the Service Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Contractor to which the same may apply and, until complete performance by Contractor of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under the Service Agreement or by law despite any such forbearance or indulgence. 23. Execution of Service Agreement by City. The Service Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, the C:\DOCUmen[s and Se[tings\jackiel\LocalSeaings\Temporary Interne[ Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc Service Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly authorized official in his or her absence). 24. Ille>;al Aliens -CRS 8-17.5-101 & 24-76 5-101. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the Owner, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a Contractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the Owner. 1. "E-verify program" means the electronic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. 2. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). 3. "Public Contract for Services" means this Agreement. 4. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Contractor certifies and represents that at this rime: 1. Contractor shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and 2. Contractor has participated or attempted to participate in either the e-verify program or the department program in order to verify that new employees are not illegal aliens. d. Contractor hereby confirms that: C:\Documents and 9ettings\jackiel\Local Settings\Temporary In[e®et Files\Content.Du[look\G6CRTE49\Gymnas[ics Service Agreement doc.dac 1. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. 4. Contractor shall not use the either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: i. Notify such subcontractor and the Owner within three days that Contractor has actual knowledge that the subcontractor is employing or subcontracting with an illegal alien; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not stop employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services 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. 6. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. 7. If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may terminate this Agreement. If this Agreement is so terminated, Contractor shall be liable for actual damages to the Owner arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S. C:\Documen[s and Settings\jackiel\Local Settings\Temporary Inte fet Files\Content.Outlook\G6CRTE49\Gymnas[ics Service Agreement doc.doc 25. General Terms. (a) It is agreed that neither the Service Agreement nor any of its terms, provisions, conditions, representations orcovenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of the Service Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) The Service Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. C:\DOCUments and Set[ings\jackiel\LOCaISettings\Temporary Int~r~t Files\Content.Outlook\G6CRTE49\Gymnastics Service Agreement doc.doc