HomeMy WebLinkAboutresolution.council.060-09RESOLUTION #~
(Series of 2009)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND ROCKY MOUNTAIN WATER CONSULTING
LLC SETTING FORTH THE TERMS AND CONDITIONS REGARDING
GEOTHERMAL INVESTIGATION SERVICES AND AUTHORIZING THE
CITY MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Rocky Mountain Water Consulting
LLC, a copy of which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and Rocky Mountain Water Consulting
LLC regarding geothermal investigation services a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager of the
City of Aspen to execute said contract on behalf of the City of Aspen.
Dated: l~~~r/~11~ ill
_n
C. Irel~yRi, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do ce(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 August 24, 2009.
n S. Koch, City Clerk
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AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and ROCKY MOUNTAIN WATER CONSULTING, INC,
("Professional").
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Scoce of Work. Professional shall perform in a competent and professional manner
the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated
herein.
2. Comuletion. Professional shall commence work immediately upon receipt of a
written Notice to Proceed from the City and complete all phases of the Scope of Work as
expeditiously as is consistent with professional skill and care and the orderly progress of the Work in
a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed
no later than December 24, 2009. Upon request of the City, Professional shall submit, for the City's
approval, a schedule for the performance of Professional's services which shall be adjusted as
required as the project proceeds, and which shall include allowances for periods oftime required by
the City's project engineer for review and approval of submissions and for approvals of authorities
having jurisdiction over the project. This schedule, when approved by the City, shall not, except for
reasonable cause, be exceeded by the Professional.
3. Paument. In consideration of the work performed, City shall pay Professional on a
time and expense basis for all work performed. The hourly rates for work performed by Professional
shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise
mutually agreed to by the parties the payments made to Professional shall not initially exceed
$33,000.00. Professional shall submit, in tmely fashion, invoices for work performed. The City shall
review such invoices and, if they are considered incorrect or untimely, the City shall review the
matter with Professional within ten days from receipt of th~ Professional's bill.
4. Non-Assienabiliri. 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 Professional of any of the
responsibilities or obligations under this agreement. Professional shall be and remain solely
responsible to the City for the acts, errors, omissions or neglect of any subeontractors officers, agents
and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the
Professional 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 sub-contractor.
5. Termination. The Professional or the City may terminate this Agreement, without
specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying
the effective date of the termination. No fees shall be earned after the effective date of the
PSI-971.doc Page 1
termination. Upon any termination, all finished or unfinished documents, data, studies, surveys,
drawings, maps, models, photographs, reports or other material prepazed by the Professional
pursuant to this Agreement shall become the property of the City. Notwithstanding the above,
Professional 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 Professional, and the City may withhold any payments
to the Professional for the purposes of set-0ffuntil such time as the exact amount of damages due the
City from the Professional maybe determined.
6. Covenant Against Contineent Fees. The Professional warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Professional, to solicitor 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, gills or
any other consideration contingent upon or resulting from the awazd or making of this contract.
7. Indecendent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall result in, or be conshved as establishing an
employment relationship. Professional 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 Professional 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 wntract. The manner
and means of conducting the work are under the sole control of Professional. 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
Professional. Professional shall be solely and entirely responsible for its acts and for the acts of
Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional 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
Professional and/or Professional's employees engaged in the performance of the services agreed to
herein.
8. Indemnification. Professional 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 contract, 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, professional error, mistake, negligence, or other fault of the Professional,
any subcontractor of the Professional, or any officer, employee, representative, or agent of the
Professional or of any subcontractor of the Professional, or which arises out of any workmen's
compensation claim of any employee of the Professional or of any employee of any subcontractor of
the Professional. The Professional 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 Professional,
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. If it is determined by
PSl-9ll.dce Page 2
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 Professional for the portion of the judgment attributable to such act,
omission, or other fault ofhe City, its officers, or employees.
9. Professional's Insurance. (a) Professional 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 Professional pursuant to Section 8 above. Such insurance shall
be in addition to any other insurance requirements imposed by this contract or by law. The
Professional shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to Section 8 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) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City. All
coverages shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Professional pursuant to Section 8 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.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of FNE HUNDRED THOUSAND DOLLARS
($SOQ,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 Workers'
Compensation require ents of this paragraph. ~p f ~~ie,~-P ~C~ Cpl/-ts.~e „Cyaw"
i?oa~, /t>'auMfui+r ~~~ CpKSarldareiGCL is a te~.ro~eP.iefo.-s.E~o . ~lN,~tt~'~
(ii) Commercial Ger~ral Liability insurance with minimum combined single t~-~U~
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and
operations. The policy shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for contractual and
employee acts), blanket contractual, independent conhactors, products, and completed
operations. The policy shall contain a severability of interests provision.
3pO~eoo (iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than 9i~-A~~L~API~
DOLLARS ($~-99~,A6&A9) each occurrence and DOLLARS $i-99~A9-
$:99) aggregate with respect to each Professional's owned, hired and non-owned vehicles
assigned to or used in performance of the Scope of Work. The policy shall contain a
severability of interests provision. If the Professional has no owned automobiles, the
requirements of this Section shall be met by each employee~~of~the~P~rofessional providing
services to the City under this contract. ~~~'~7"""" B /7-09
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(c) The policy or policies required above shall be endorsed to include the City and the City's d M~t_„y,,r
officers and employees as additional insureds. Every policy required above shall be primary insur- T
ance, 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 Professional. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Professional shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, 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 this contract and shall provide that the coverages 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.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of contract
upon which City may immediately terminate this contract, 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 Professional to City upon
demand, or City may offset the cost of the premiums against monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) 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 protections provided
by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to
time amended, or otherwise available to City, its officers, or its employees.
10. Ciri'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 Professional for inspection during normal business hours.
City makes no representations whatsoever with respect to specific coverages offered by CIRSA.
City shall provide Professional reasonable notice of any changes in its membership or participation
in CIRSA.
PS1-971.dce Page 4
11. Completeness of Agreement. It is expressly agreed that this agreement contains the
entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or
written representations, agreements, warranties or promises pertaining to the project matter thereof
not expressly incorporated in this writing.
12. Notice. Any written notices as called for herein may be hand delivered to the
respective persons and/or addresses listed below or mailed by certified mail r+etum receipt requested,
to:
City: Professional:
City Manager John M Kaufman
City of Aspen Rocky Mountain Water Consulting, Inc.
130 South Galena Street 20203 East Maplewood Place
Aspen, Colorado 81611 Centennial, CO 80016
13. Non-Discrimination. 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 wntract.
Professional agrees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. 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, wvenant, or
condition of this 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 Professional to which the same may apply and, until
complete performance by Professional of said term, covenant or condition, the City shall be entitled
to invoke any remedy available to it under this Agreement or by law despite any such forbearance or
indulgence.
15. Execution of Agrcement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this agreement shall not be binding upon the City unless
duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence)
following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a
duly authorized official in his absence) to execute the same.
16. Illeeal 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
PS1-971.doc Page 5
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 teens and conditions have been designed to comply with the
requirements of this new law.
b. Definitions. The following terms aze 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 famishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
aze merely incidental to the required performance.
c. By signing this document, Contractor certifies and represents that at this time:
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:
l . 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.
PS1-971.doc Page 6
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 azising out of Contractor's violation of Subsection 8-
17.5-102, C.R.S.
17. General Terms.
(a) It is agreed that neither this agreement nor any of its terms, provisions,
conditions, representations or covenants 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 this agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
PS1-971.doc Page 7
(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 wrifing
signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as
from time to time in effect.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by then duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on the
date hereinafter written.
[SIGNATURES ON FOLLOWING PAGE]
PS1-971.doc Page 8
ATTESTED BY: /~
1 ~, WITNESSED BY•
H L,~
CITY OF ASPEN, COLORADO:
By:
Title:
Date: ~ Z
PROFESSIONAL
ROCKY MOUNTAIN WATER CONSULTANTS
By:
Title
DaU
PS1-971.doc Page 9
EXHIBIT' "A" to Professional Services Agreement
Scope of Work
1. Compile and review avai/abk and pertinent hydrogeologic information. The
Colorado Geological Survey bas mapped in detail much of the geology of Roaring
Fork River Basin from Aspen to Glenwood Springs. Copies of these maps have
been obtained and will be reviewed along with other relevant USGS maps of the
area. Pertiaerrt well records on file at the Colorado State Engineer's Office and
Oil and Gas Commission will also be compiled, tabulated, mapped, and reviewed.
Available and relevarn water-quality data will be compiled from municipal .
sources and the State Geological Survey.
2. Water Rights Tabulation. A tabulation by drainage of existing water rights along
the Roaring Fork River and it tributaries from Aspen to Glenwood Springs will be
developed from State Engineer's Office records including the online Colorado
River Decision Support System. The tabulation will include both surface-water
and ground-water rights. The tabulation will include water right names, locations,
appropriation and adjudication dates, permit numbers for wells, case numbers,
decree amoum ,uses.
3. Deve%p conceptual model Using the data compiled in tasks 1 and 2 above,
hydrogeologic cross sections will be prepared as necessary that will extend from
Aspen to the Colorado River at Glenwood Springs. A conceptual model (as
described above) will be developed that will be used to design test wells and form
the basis of a numerical ground-water model in support of the water rights
application.
4. Monitor ongoing studies by others on the Aspen anomaly. Ongoing research by
others on the Aspen anomaly will be monitored. Opportunities for johrt funding
oftest drilling or other activities through grants and/or loans will be explored.
5. Interim Technical Memorandum. The work products of each task will be
pre~nted in an interim technical memorandum to Alperstein and Covell, Aspen's
water counsel, by August 15, 2009. The memorandum will enable Aspen to
determine whether or not the project is feasible before moving forward on the
water court application and the construction of any test wells. The interim
technical memorandum will not address potential funding opportunities for
subsequent phases of the project, such as test drilling anti modeling. A discussion
of funding opportunities would be the product of a separate analysis.
Future test well(s) and necessary numerical ground-water modeling should provide
essemial quantitative information about ~e availabIlity and feasibility of developing
geothermal resources beneath Aspen. The feasibility must address the technical, water
PS1-971.doc Page 10
rights, and economic factors that would likely affect the outcome of the project. The test
well and modeling information will also provide needed information about the hydraulic
connection between the geothermal ground-water source and the alluvium of the Roaring
Fork River system and the need for an augmenffition plan. Collectively, this information
will be used by Aspen and their water counsel to determine if and how to move forward
with the Water Court case. Each subsequent phase of the project would also be
accompanied by an appropriate interim technical memorandum that addresses the issues
and outcomes of the respective phase of work. A final project report would be completed
at the conclusion of the final phase of the project work in support of a geothermal water
right decree.
Test well drilling and modeling (Phases 2 and 3) are rrot included in this scope of work
and will be addressed separately following completion of the Phase 1 tasks.
A cost estimate for each task in Phase 1 at a billing rate of $115 per hour (plus expenses)
is as follows:
PSI-971.doc Page 11
EXHIBIT "B" to Professional Services Agreement
Rate Schedule
A cost estimate for each task in Phase 1 at a billing rate of $115 per hour (plus expenses)
is as follows:
Task
1 20 $2,300 $1,000 $3,300
2 20 $2,300 $1,000 $3,300
3 160 $18,400 $2,000 $20,400
4 20 $2,300 $400 $2,700
S 20 $2,300 $1,000 $3,300
Totals 240 527,600 $5,400 $33,000
Costs will be billed on a 6me and expense basis with a cost not to exceed $33,000.
Travel time to meetings will not be billed.
PS1-971.dce Page 12