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HomeMy WebLinkAboutresolution.council.087-10 ATTACHMENT A RESOLUTION NO. Series of 2010 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A VENDING AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND WE- cycle, TO ALLOW FOR THE USE OF PUBLIC SPACE FOR THE PLACEMENT OF BIKE SHARING KIOSKS, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, the City of Aspen seeks to improve air quality by reducing traffic congestion and air pollution; and WHEREAS the agreement between the City of Aspen, Colorado and WE- cycle, copies of which are annexed hereto and made a part thereof allows for the operation of a bike share program aimed at reducing vehicle trips; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves these VENDING AGREEMENTS between the City of Aspen, Colorado, and WE- cycle, copies of which are 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. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 12 day of October, 2010. .1 ,ll GU /04e/ Michael C. Irel. d, 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 adopte' I the City Council of e City of Aspen, Colorado, at a meeting held on the day hereina', / La, Kathryn S. rich, City Clerk 4 The program could also provide connectivity between future bus rapid transit stations and employer sites. RECOMMENDED ACTION Staff recommends the approval of the attached Resolution and vending agreement. ATTACHMENTS Attachment A: Resolution authorizing the approval of a vending agreement with WE -cycle Attachment B: Vending Agreement between the City of Aspen and WE -cycle 3 LICENSE AND VENDORS AGREEMENT THIS LICENSE AND VENDORS AGREEMENT, entered into this day of _ 2010, by and between the City of Aspen, a municipal corporation (hereinafter "City") and We -Cycle (hereinafter "We- Cycle ") RECITALS 1. We -Cycle represents it is duly licensed under the provisions of Section 14.08.010, et seq. of the Municipal Code of the City of Aspen to conduct business in the City of Aspen, or it is exempted from licensing requirements pursuant to Section 14.08.050 of said Code; and 2. We -Cycle represents it is duly licensed to engage in the business of selling at retail pursuant to Section 39 -26 -103, C.R.S. 3. We -Cycle has requested permission to conduct vending operations at the agreed -upon locations within the City limits of the City of Aspen (see Attachment A — the "License Areas "), between May 15 — October 15, 2011. Locations of We -Cycle kiosks are flexible by definition and might need to be adjusted based on use patterns and demand and for temporary purposes such as events, constructions, street closures, etc. We -Cycle will discuss and obtain approval of any changes in location with the Engineering, Parks, and Transportation Departments of the City of Aspen before making any changes to the locations agreed upon herein. Vending operations shall be limited to the terms and conditions of this agreement; and 4. We -Cycle promises to conduct its vending business in such a manner as to minimize police and administrative costs to the City; and 5. The execution of this license is required under the provisions of Section 15.04.350 of the Municipal Code of the City of Aspen as a condition precedent to the vending operations described herein, which operations are specifically limited to the dates set forth herein; and 6. The parties hereto understand that the vending operation contemplated by this License and Vending Agreement is an experiment for the term of this Agreement and shall the execution of this Agreement by the City shall not be interpreted as anything other than a desire to determine if the vending operation contemplated herein is in the best interest of the citizens of Aspen. Thus, it is not 1 contemplated that the term of this Agreement shall be extended by the City at the conclusion of the term hereof, unless the City determines, in its sole discretion, that the extension of this Agreement for any period of time, or upon any conditions, shall be in the best interests of the City. NOW, THEREFORE, the parties mutually agree for and in consideration of the sum of One Dollar and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee covenant and agree as follows: 1. Grant of License. Grantor hereby grants and conveys to Grantee, its successor and assigns, for the benefit of the general public, a license (the "License ") over and across the License Areas. (The License Areas and the square footage for each area is described in Attachment A appended hereto and by this reference made a part of this Agreement. 2. Permission to Vend. City hereby grants We -Cycle permission to operate a community bike sharing program, under the provisions of Section 15.04.350 of the Municipal Code of the City of Aspen, and for that purpose only, to occupy the WE -cycle kiosks in the License Areas, between the hours of 12:00 am and 12:00 a.m., May 15 — October 15, 2011. 3. Use. The License Area may be used by We -Cycle for the placement, operation and maintenance of a community bike sharing kiosk for the use of the general public to access and use bicycles. 4. Term. The term of this License and Vendor's Agreement shall terminate on October 15, 2011; subject, however, to the right of the City to terminate this agreement by written notice to We -Cycle not less than sixty (60) days prior to the date that City desires to terminate the Agreement. 5. Reasonable Care in Placement and Maintenance. We -Cycle agrees to use reasonable care in placement and maintenance of kiosks within the License Areas and agrees to avoid damage to the surrounding land and improvements thereto. 6. Kiosk and Bike Advertising Allowance. City hereby grants to We- Cycle permission to feature sponsors on the agreed upon sponsorship surfaces of both kiosks and bikes as described in Attachment B. We -Cycle agrees to 2 sponsorship standards regarding content and maintenance as described in Attachment B. 7. Notices. Notices and other communications that may be given, or are required to be given hereunder, shall be in writing and shall be deemed given by the party when delivered personally or when deposited in the United States mail with sufficient postage affixed and addressed to such party at the respective address shown below: CITY OF ASPEN: City Manager City of Aspen 130 S. Galena St. Aspen, CO 81611 GRANTOR: 8. Maintenance of License Areas. We -Cycle agrees to police the License Areas as provided under this Agreement and to keep them free of all litter and debris and neither to permit or suffer any disorderly conduct or nuisance whatsoever. We -Cycle shall remove any and all equipment, displays, and property of any kind immediately upon the termination of this Agreement and shall return the premises to a clean and orderly condition. A failure to remove all displays, equipment, or property in a timely fashion shall result in the disposal of the same by the City at the We- Cycle's expense and without recourse by We -Cycle against City. 9. Non - Assignability. This Agreement may not be transferred, assigned, or sublet by either party without prior written consent of the other. 10. Indemnification. We -Cycle 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 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, professional error, mistake, negligence, 3 or other fault of We- Cycle, any subcontractor of We- Cycle, or any officer, employee, representative, or agent of We -Cycle or of any subcontractor of We- Cycle, or which arises out of any workmen's compensation claim of any employee of We -Cycle or of any employee of any subcontractor of We- Cycle. We -Cycle 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 We- Cycle, 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 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 We -Cycle for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 11. We- Cycle's Insurance. (a) We -Cycle 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 We -Cycle pursuant to Section 10 above. Such insurance shall be in addition to any other insurance requirements imposed by this Agreement or by law. We -Cycle shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 81 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) We -Cycle shall procure and maintain, and shall cause any subcontractor of We -Cycle 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 We -Cycle pursuant to Section 10 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) Worker's 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 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. 4 Evidence of qualified self - insured status may be substituted for the Workmen's Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single 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 contractors, products, and completed operations. The policy shall contain a severability of interests provision. (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 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 We- Cycle. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. We -Cycle 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 We- Cycle'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 Agreement. No other form of certificate shall be used. The certificate shall identify this Agreement 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 We -Cycle 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 Agreement, 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 We -Cycle to City upon demand, or City may offset the cost of the premiums against monies due to We -Cycle from City. 5 (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. 12. 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 We -Cycle for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide We -Cycle reasonable notice of any changes in its membership or participation in CIRSA. 13. 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. 14. 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 contract. We -Cycle agrees to meet all of the requirements of City's municipal code, Section 13 -98, pertaining to non- discrimination in employment. 15. 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 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 We -Cycle to which the same may apply and, until complete performance by We -Cycle 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. 6 16. Execution of Agreement 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. 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. (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) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. Venue for any court proceedings shall be in Pitkin County, Colorado. 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 hereinafter written. 7 CITY OF ASPEN, COLORADO A Municipal Corporation ("*. 2,64 5 c1 n We- Cycle: fv r e. Ma\\'N 1 Pec 4ent' 8