Loading...
HomeMy WebLinkAboutresolution.council.026-11 RESOLUTION # Li/ (Series of 2011) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND RABITO GOLF ACADEMY SETTING FORTH THE TERMS AND CONDITIONS REGARDING GOLF SCHOOL AND TEACHING OPERATIONS 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 Rabito Golf Academy, 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 Rabito Golf Academy regarding golf school and teaching operations 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: 40./etLe / ? c // Michael C. Irelan , 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 April is, 2011. l8 _per , _ :L/ Kat/ S. Koch, City Clerk The Ole erpepen CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2010 - 080. AGREEMENT made as of 18 day of April, in the year 2011. BETWEEN the City: Contract Amount: The City of Aspen c/o Steve Aiken 130 South Galena Street Total: $15,000.00 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 until it has been approved by the City Carol Rabito d/b /a Rabito Golf Academy Council of the City of Aspen. c/o Carl Rabito 3325 Just -a -mere Court City Council Approval: Windermere, FL 34786 Date: fir n I ( , COI I Phone: 941-704-6133 Resolution No.: ,Of) I - : - )2 For the Following Project: Golf school and academy at the Aspen Municipal Golf Course. Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Agreement Professional Services Page 0 termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, 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 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 -off until such time as the exact amount of damages 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 agreement shall result in, or be construed 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 contract. 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 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 of the City, its officers, or employees. Agreement Professional Services Page 2 (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) 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 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 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 humunity 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 member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty /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. Agreement Professional Services Page 4 "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "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, 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 contract 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 attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for 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 date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. Agreement Professional Services Page 6 bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any 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. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may 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 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 being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent 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 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 frilly 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. Agreement Professional Services Page 8 EXHIBIT A: Scope of Work Professional shall perform in a competent and professional manner the following tasks? 1. Establishment of Golf Academy at Aspen Municipal Golf Course: Professional shall assist City staff in the establishment and operation of a golf academy at the Aspen Municipal Golf Course. Professional shall provide the City with professional advice and counsel conceming how to manage an effective and profitable golf academy, build beneficial instructional programs, build popular junior programs in conjunction with Aspen Junior Golf in any way, ect. 2. Appearances: a. Telephone and Conference Calls: Professional will make himself available to provide insight and advice on a reasonable number of telephone conferences with City representatives during the term on various business and instruction issues related to Golf Academy at the Aspen Municipal Golf Course. b. On -Site Inspection: Professional will provide golf instruction to students (e.g. PGA Tour Pros, LGPA Tour Pros, Amateurs, Juniors, ect) at the Aspen Municipal Golf Course four (4) times per season with a minimum of three (3) days per visit for 8 hours per day during the months of May, June, July and August. Professional will schedule a majority of his own lessons. c. Premium Clinics and Lessons: Professional will also be available for predetermined number of premium clinics (10 to 25 clinics per year with approximately 5 students per clinic) and lessons marketed and scheduled through the City. 3. Promotional Activities: In an effort to provide national and world wide exposure to the Aspen Municipal Golf Course, Professional will use his best efforts to conduct interviews at the Aspen Municipal Golf Course (e.g. filming instructional programs for television programming and photo sessions for magazine articles). 4. Golf Academy Instructors: Professional will secure, hire, and certify all instructors that will teach at the Golf Academy at Aspen Municipal Golf. This is a very important function so as to insure that the golf instruction at the Golf Academy at the Aspen Municipal Golf Course is of the highest quality and represent the proven principles of Professional's teaching philosophy. Professional shall be responsible for and shall ensure that Academy instructors shall conform to the following: a. All Instructors shall carry themselves in a professional manner at all times and adhere to City standards established for all City employees. b. Instructors shall dress in appropriate apparel with both Professional's and City of Aspen's logos. c. Instructors shall follow all safety rules at the range and will take caution when teaching at the Academy. Agreement Professional Services Page 10 EXHIBIT B: Fee Schedule In consideration of the work performed, City shall pay Professional the sum of $15,000 per year. The annual fee shall be paid in two equal installments on May 1 and July 1 of each year of the Term, provided this Agreement is not terminated as provided herein. If this Agreement is terminated as provided herein, the fee paid to Professional shall be adjusted on a prorated basis for the summer season of May thru September. Professional shall provide the on -site instructions described in the appended Scope of Work. Professional shall be entitled to retain all revenues generated through private lessons. Professional and City shall split all revenues generated from premium clinics scheduled by City on a 70 %130% split with Professional receiving the 70% share on the first $100,000 in annual revenue, 80 %120% split on the next $50,000 in annual revenue and 90 % /10% split on any annual revenue greater than $150,000. Head Pro shall not charge more than $165 per hour for non -pass holders or $110 per hour for pass holders. All other PGA Pros shall not charge more than the rates mentioned herein. Agreement Professional Services Page 12