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HomeMy WebLinkAboutresolution.council.084-10 RESOLUTION #04 (Series of 2010) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND NAVIGANT CONSULTING SETTING FORTH THE TERMS AND CONDITIONS REGARDING CONSULTING SERVICES TO CREATE A CITY OF ASPEN ENERGY ASSURANCE PLAN (LEAP) AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council an agreement between the City of Aspen, Colorado, and the, a copy of which agreement 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 agreement between the City of Aspen, Colorado, and Navigant Consulting regarding consulting services for a City of Aspen Energy Assurance Plan (LEAP) for the city of Aspen, 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: 1 G 2/7) /� , / 6�/,l /dpi Michael Cland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify 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, October 25, 2010 lett if Ka 'f n S. Koch, City Clerk The City of llspen CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2010-053. AGREEMENT made as of 25th day of October, in the year 2010. BETWEEN the City: Contract Amount: 1ihe City of Aspen e/o Utility Efficiencies Department 130 South Galena Street Total: $42,400.00 Aspen. Colorado 81611 Phone: (970) 920 -5055 If this Agreement requires the City to pay And the Professional: an amount of money in excess of $25,000.00 it shall not be deemed valid Navigant Consulting until it has been approved by the City Council of the City of Aspen. c/o Donald Harker 30 South Wacker Drive, Suite 3100 City Council Approval: Chieaao.1f 60604 Phone: 312 - 583 - 5700 Date: October 25, 2010 Resolution No.: For the Following Project: Consulting Services to Create a City of Aspen Energy Assurance Plan (LEAP) Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit 13: Fee Schedule, Agreement Professional Services Page 0 The City and Professional agree as set forth below. I. Scope of W ork. Professional shall perform in a com petent and professional m anner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work immediately upon receipt ofa written Notice to Proceed from the City and com plete all phases of the Scope of W ork 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 Jun 13, 2011. Upon request of the City, Professional shall s ubmit, for the City's approval, a schedule for the perform ance of Professional' s services which shall be adjusted as required as the project proceeds, and which shall include allowances fo r periods of tim e 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 th e City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Paym ent. In consideration of the work perform ed, City shall pay Professional on a tim e and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those rates set forth at Exhibit B appended hereto. Except as otherwise m utually agreed to by the parties the paym ents m ade to Professiona I shall not initially exceed the am ount set forth above. Professional shall subm it, in tim ely fashi on, invoices for work perform ed. The City shall review such invoices and, if they are considered incorrect or untim ely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non - Assignability . Both parties recognize that this Agreem ent is one for personal services and cannot be transferred, assigned, or sublet by e ither party without prior written consent of the other. Sub - Contracting, if authorized, shall not re lieve the Professional of any of the responsibilities or obligations under this Agreem ent. Professional shall be and remain solely responsible to the City for the acts, errors, om issions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deem ed to be an agent or em ployee 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 of Procurement. The sale contem plated by this Agreem ent m ay be canceled by the City prior to accep tance 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. 6. Termination of Professional Services . The Prof essional or the City m ay term inate the Professional Services com ponent of this Agreem ent, without specifying the reason therefor, by giving notice, in writing, addressed to the othe r party, specifying the e ffective date of the termination. No fees shall be earned after th e effective date of the term ination. Upon any termination, all finished or unfinished docum ents, data, studies, surveys, drawings, m aps, models, photographs, reports or other material prepared 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 f or dam ages 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 Agreement Professional Services Page 1 purposes of set -off until such tim e as the exact am ount of dam ages due the City from the Professional may be determined. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreem ent shall result in, or be construed as establishing an employment relationship. Professional shall be, a nd 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 deem ed to be, the em ployee, agent or servant of the City. City is in terested only in the results obtained under this contract. The m anner and means of conducting the work are under the sole c ontrol 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 em ployees, agents or servants of Professional. Professional shall be solely and en tirely responsible for its acts and for the acts of Professional's agents, ern ployees, servants and subcontractors during the perform ance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for paym ent of all federal, state and local taxes or contributions im posed or required under unem ployment insurance, social s ecurity and incom e tax law, with respect to Professional and/or Professional' s employees engaged in the perform ance of the services agreed to herein. 8. Indemnification. Professional agrees to indem nify and hold harm less the City, its officers, employees, insurers, and self - insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or dam age, including wit hout lim itation claims arising from bodily injury, personal injury, sickness, disease, death, propert y loss or dam age, 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 cl aimed to be caused in whole or in part by, the act, omission, error, professional error, m istake, neg ligence, or other fault of the Professional, any subcontractor of the Professional, or any offi cer, em ployee, representative, or agent of the Professional or of any subcontract or of the Professional, or which arises out of any workm en's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to inves tigate, handle, respond to, and to provide defense for and defend against, any such liability, claim s or demands at the sole expense of the Professional, or at the option of the City, agr ees to pay the City or reim burse the City f or the def ense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgm ent of a court of co mpetent jurisdiction that such injury, loss, or dam age was caused in whole or in part by the act, om ission, or other fault of the City, its officers, or its em ployees, the City shall reim burse the Professional for the porti on of the judgm ent attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure a nd maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claim s, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirem ents im posed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant Agreement Professional Services Page 2 to Section 8 above by reason of its failure to pr ocure 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 m aintain, and shall cause any subcontractor of the Professional to procure and m aintain, the m inimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously m aintained to cover all liability, claim s, 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 im posed by applicable laws for any em ployee engaged in the perform ante of work under this contract, and Employers' Liability insurance with m inimum lim its of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy lim it, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualif ied self - insured status m ay be substituted f or the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance w ith mi nimum c ombined s ingle limits of FIFTY THOUSAND DOLLARS ($ 50,000.00) each occurrence and FIFTY THOUSAND DOLLARS ($ 50,000.00) aggregate. Th e policy shall be applicable to all prem ises and operations. The policy shall include coverage for bodily injury, broad form property dam age (including com pleted operations), personal injury (including coverage for contractual a nd em ployee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability i nsurance w ith mi nimum c ombined single limits for bodily injury and propert y damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) 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 m et by each em ployee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the m inimum limits of FIFTY THOUSAND DOLLARS ($50,000) each claim and FIFTY THOUDAND DOLLARS ($ 50,000.00) aggregate. (c) 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 prim ary insurance, and any insurance carried by the Cit y, its officers or ern ployees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory Agreement Professional Services Page 3 insurance to that provided by Professional. No additional insured endorsem ent 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 com mencement of the contract. No of her form of certificate shall be used. The certificate shall identify this contract and sha 1I provide that the coverages afforded under the policies shall not be canceled, term inated 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 in aintain policies providing the required coverages, conditions, and m inimum lim its shall constitute a m aterial breach of contract upon which City m ay 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 dem and, or City m ay offset the cost of the prem iums 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 th at City is relying on, and does not waive or intend to waive by any provision of this cont ract, the m onetary lim itations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, im munities, and protections provided by the Colorado Governor ental Im munity 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. City's Insurance. The parties hereto understand that the City is a m ember of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies a nd manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during norm al 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 m embership or participation in CIRSA. 11. Completeness ofAgreem ent. 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, agreem ents, warranties or prom ises pertaining to the project m atter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called f or here in m ay be hand delivered or m ailed by certified mail return receipt requested to the respective persons and/or addresses listed above. Agreement Professional Services Page 4 13. Non - Discrimination. No discrim ination because of race, color, creed, sex, m arital status, affectional or sexual orientation, fam ily res ponsibility, national origin, ancestry, handicap, or religion shall be m ade in the em ployment of pers ons to perform services under this contract. Professional agrees to m eet all of the require ments of City' s m unicipal 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 sam e or any other term. No term, covenant, or condition of this Agreem ent can be waived except by the written consent of the City, and f orbearance or indulgence by the City in any regard whatsoever sh all not constitute a waiver of any term, covenant, or condition to be perform ed by Professional to which the sam e m ay apply and, until com plete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any rem edy available to it under this Agreem ent or by law despite any such forbearance or indulgence. 15. Execution of Agreem ent by City . This Agreem ent shall be binding upon all parties hereto and their respective heirs, executors, adm inistrators, 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 (o r a duly authorized offi cial 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. Illegal Aliens — CRS 8- 17.5 -101 & 24- 76.5 -101. (a) Purpose . During the 2006 Colorado legisla tive session, the Legislature passed House Bills 06 -1343 (subsequently am ended 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 City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hi res 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 term s 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 City of Aspen. "Basic Pilot Program " m cans the basic pilot em ployment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as am ended, that is adm inistered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. Agreement Professional Services Page 5 "Services" m Bans 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, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a c ontract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has a ttempted to verify through participation in the Federal Basic Pilot Program th at Professional does not em ploy any new employees who are not eligible for em ployment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract f or Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the da to of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verif y sam e every three (3) calendar m onths thereaf ter, until Professional is accepted or the public cont ract for services has been com pleted, whichever is earlier. The requirem ents of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre - employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowle dge that a subcontractor perform ing work under the Public Contract for Services knowingly em ploys or contracts with a new employee who is an illegal alien, Professional shall: Agreement Professional Services Page 6 (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted 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 em ploying or contracting with the new employee who is an illegal alien; except that Prof essional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor pr ovides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall com ply 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. (vii) If Professional violates any provisi on of the Public Contract for Services pertaining to the duties im posed by Subsection 8 -17.5 -102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so term inated, Contractor sh all be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8- 17.5 -102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to f ederal law, (2) shall com ply with the provisions of CRS 24- 76.5 -101 et seq., and (3) shall produce one of the form s of identification required by CRS 24- 76.5 -103 prior to the effective date of this Agreement. 16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional warrants that no person or selling agency has been em ployed or retained to solicit or secure this Cont ract upon an agreem ent or understanding for a commission, percentage, brokerage, or continge nt fee, excepting bona fide em ployees or bona fide established com mercial or selling ag encies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any em ployee of the City a gratuity or any offer of employment in connection with any deci sion, approval, disapproval, recom mendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurem ent standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for Agreement Professional Services Page 7 ruling, determination, claim or controversy, or other particular m atter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represen is that no official, officer, em ployee or representative of the City during the term of this Agreem ent has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreem ent or the proceeds thereof, except those that may have been disclosed at the tim e C ity Council approved the execution of this Agreement. (d) In addition to other rem edies it m ay have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 17. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose be ing appropriated, budgeted and otherwise m ade available. If this Agreem ent contemplates the City utilizing state or federal funds to m eet its obligations herein, this Agreem ent shall be c ontingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 18. General Terms. (a) It is agreed that neither this Agreem ent nor any of its term s, provisions, conditions, representations or covenants can be m odified, changed, term inated or am ended, waived, superseded or extended except by appropriate written instrum ent fully executed by the parties. (b) If any of the provisions of this Agreem ent shall be held invalid, illegal or unenforceable it shall not affect or im pair 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 here in at the tim e of the execution hereof and that after execution no alteration, change or m odification shall be m ade except upon a writing signed by the parties. (d) This Agreement shall be govemed by the laws of the State of Colorado as from time to time in effect. Agreement Professional Services Page 8 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF AS EN, COLORADO: PROFESSIONA [Signature] BY: t t. st# By: -1 4,* ;r1 4 LD I fAYZIZo ' [N. , ] [Name] Title: A 11....A. ; - 1 Title: 1 t ECi'o12 Date: 1 17/ I U Date: 1C/ Chro Re ]"` 2.010 Approved as to form: : a/ ..rs • omey's Office Agreement Professional Services Page 9 EXHIBIT A Scope of Work 1. Navigant Consulting will conduct a review of: a. Aspen's 2003 Emergency Management Plan b. Aspen's Clean Energy Plan c. Aspen electric's outage management procedures to include: i. Notifications ii. Dispatch iii. Prioritization d. Memorandums of Understanding (MOU) for mutual support, if any, with Pitkin County Communications Department and/or Holy Cross Electric. 2. Navigant Consulting will review applicable communication plans and procedures and make recommendations to: a. Incorporate industry best practices for: i. Outage communications ii. Emergency Communications iii. Public Communications protocols b. Leverage the integration of Smart Meter technology into outage response 3. Navigant Consulting will develop an "all- hazards" Energy Assurance Plan that: a. Complements the 2003 Emergency Management Plan b. Incorporates the goals of Aspen's Clean Energy Plan c. Incorporates industry best practices d. Identifies and attempts to mitigate key vulnerabilities to Aspen's energy supply e. Identifies and describes critical energy infrastructure f. Identifies critical load customers 4. Navigant Consulting will also make appropriate recommendations to increase the resiliency of Aspen's energy supply based upon information developed over the course of this engagement. 5. Navigant Consulting will support the City Partners and Community Stakeholder's meeting initially scheduled for November 2010 and present the final draft of the Energy Assurance Plan to the City in June 2011. Agreement Professional Services Page 10 EXHIBIT B Fee Schedule Navigant Consulting agrees to perform this work for a fixed price not to exceed $42,400. The cost is broken down by task below: Task 1 Review current plans/Identify planning gaps $12,000 Task 2 Review communications plans, procedures, and protocols $ 7,000 Task 3 Develop "all hazards" Energy Assurance Plan $15,400 Task 4 Make recommendations to improve energy supply resiliency $ 4,000 Task 5 Support stakeholders meeting and EAP plan submittal $ 4,000 Grand Total $42,400 Agreement Professional Services Page 11