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HomeMy WebLinkAboutresolution.council.102-01 RESOLUTION# 1[]2 (Series of 2001) A RESOLUTION APPROVIN6 A PROFESSIONAL SERVICES AOREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND COLORADO OENERAL CONSTRUCTION, SETTIN6 FORTH THE TERMS AND CONDITIONS REGARDIN6 AND AUTHORTZIiWG THE CITY MANAOER TO EXECUTE SAID AGREEMENT WHEREAS, there has been submitted to the City Council a Professional Services Agreement between the City of Aspen, Colorado, and Colorado General Construction, a copy of which contract is annexed hereto and made a part thereof. WHEREAS, Colorado General Construction will provide construction management services for the Truscott Housing portion, Phases 1 and 2 of the Truscott Redevelopment Project. 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 Colorado General Construction who will provide construction management services for the Truscott Housing portion, Phases 1 and 2 of the Truscott Redevelopment Project, 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: ~j /~// I, Kathryn S. Koch, d~ly appointed and acting City Clerk do certify that the foregoing is a hrue and accurate copy of that resolution adopted by the City Council of the city of Aspen, Colorado, at a meeting held October 22, 2001 g. Koch, city C~Feerk AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date 'hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and ~.,~ ~'~'A/~. , ("Professional"). For and in comideration of the mutual covemnu contained herein, the parties agre~ as follows: I. Scope of Work. Professional shall perform in a competent and professional m~n~er the Scope of Work as set forth at Exl~'bit "A" attached hereto and by this reference i~corpomted herein. 2. Completion. 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 t~mely m~,~er. The parties anticipate that alt work puts,rant to this agreement shall be completed no later than I~/llo~. Upon resuest 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 of time 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 Pro~ssioml. 3. Payment. In consideration of the work performed, Cky shall pay Professional on a th-~e and expense basis for all work performed. The hourly rates for work performed by Professiongl shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the paymems made to Professional shall not .... exceed'~iT&jSo~, Professional shall submit, in ilmely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City ~hall review the matter with Professional w~n um days from receipt of the ~%ofassional's bill. 4. Non-Assignability. Both parties recognize that ~ contract is one for personal services and ca,not be transferred, asmgned, or sublet by either party without prior written coment of the other. Sub-Contracting, ff authorized, shall not relieve the Professional of any of the respons~ilities or obligations under ~ agreemem. Professional shall be and remain solely respons~le to tho City for the acts, ~rrors, omissions or neglect of any subeqntractors officers, agents and employees, each of v)hom shall, for this purpose be deemed to be an agent or employee of the Professional to the ex.em of the subcontract. The City shall not be obligated to pay or be liable for payment of any snm~ due which may be due to any sub.contractor. 5. Termination. The Professional or the City mai, termimte t~ Agreemem, without specifying the reason therefor, by giving notice, i~ writhg, addressed to the other party, PSl-~71.do¢ Page I specifying the effective date of the termination. No fees shall be earned after the effective date of the ~ermination. Upon any termination, all finished or unfinished documents, data. studies, surveys, drawings, maps, models, photographs, repons or other material prepared by the Professional pursuant to this Agreemem 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 determi,~ed. Covenant Against Contingent 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 solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, co~nmission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or rn,king of this contract. 7. Independent C6ntractor Status. It is expressly acknowledged and understood by · the parties ttmt norhin§ 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 m use his or her best efforts to provide the said services on behalf of the City. No agent, ,mployee, or servant of Professional shall be, or shall be de~med to be, the employee, agent or servant of the City. City is interested only. in the results obtained under this contract. The manner .and mmms 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 imxtrance and unemployment insurance, are a¥~il~h!e from City to the -mployees, agents or servants of Professional. Professional shall be solely and entirely respons~le for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance ofthi.~ contract. Professional shall indemnify City all liability and loss in connection with, and si~n assume full respons~flity for payment of all federal, state and local taxes or contributions imposed or required under unemployment imurance, social sea~-ity and income tax law, with respect to Professional and/or Professio~ml's en~ployees engaged in the perform~n~-e of the services agreed to herein. 8. Indernuification. Professional agrees to indemnify and hold harmless the City, its officers, employees, imurers, and seif-imumuce pool, from and agsi~.~t all liability, clslm~, and d~m~utis, on account of injury, loss, or damage, including without )imltation clsirns arising from bodily injury, personal injury, sickfiess, disease, death, pmpmY loss or damage, or any other loss of any kind whatsoever, whi~ arise out of or are in any m,~er co~m~:ted with this contract, if such injury, loss, or damage is caused in whole or in pan by, or is claimed to be caused in whole or ia pan by, the act, omission, errox, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, omployee, 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 may employee of any subcontractor of the Professional. The Professional P$1-9?l.doc Pag~ 2 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 m 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. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient m insure ag~imt 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 Sectioh 8 above by reason' of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in suffi cient amounts, duration, or types. (b) Professional shall procure and maintain, And shall cause any. subcontractor of the Professional m procure and malmuifl,' 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 clairns- made policy, the necessary retroactive dates and ex'rended reporting periods sh,l! be procured to maintain such continuous coverage. (i) Wott~nen's Compensation iusurance m cover obligations imposed by applicable laws for any employe~ engaged in the performanc9 of work under this contract, and Employers' Liability insurance with minimum limlt3 of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED 'THOUSAND DOLLARS ($.500,000.00) disease - policy l~mlt, and FIVE HUND~ THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of ~alified 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 MIIJ.ION DOLLARS ($1,000,000.00)~aggregam. The policy shall' be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form propm'ry damage (including completed operations), personal injury ('~mcluding coverage for contractual and employee acts), blanket contracn:~], independent contractors, products, and completed operations. The policy shall con,~i,~ a severshility of interests provision. 4~ ~8'i~681:} 'rD I~W~' ~t/~)~'~' ']'NOO$,~a/O l~tRJ,.~'[~f:l~.) -- (fit) Comprehensive Automobtle Liabtliry insurance with ~ ' 'mum combined single limits for bodily injury and property rt~mage of not less than ONE MILLION PS1-971.doc Page 3 DOLLARS ($1.,000,000.00)~each occurrence and ON,E, 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 met by each employee of the Professional providing services to the City under !,his contract..~ (iv) Professional Liabilir~ insurance with the minimm6 ~l"units Of ONE IvffLLtON DOLLARS ($1,000,000) each cl~im 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 ~raployees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or cruployees, or carried by or provided throug, h any insurance pool of the City, shah be excess and not contributory imurance to that provided by Professional. No additional insured cixiorsement to the policy required above shall coat, in any exclusion for bodily injury or property damage arising from completed operations. The ProfeSsional shall be solely respbns~le for any deductible l.osses under any policy rc~quired above~ (d) "~The certificate of insurance provided by the City shall be campleted by the Professional's insurance agent as evidence that policies providing the required coverages, condi- tions, and rai~imum limits are in full force and effect, ~d shall be reviewed and approved by the City prior to ce-,.encement of the contract. No other form of certificate shall be. used. The certificate shall identify this contract and shall provide ?hat the coverages afforded under the policies' sha~ not be canceled, ic,.,in~t~:l or materially changed until at least flfirty (30) days prior written notice b~s been ~iven to the City. (e) Failure on the part of. the Professioml to procure or ma/nu~ policies providing the required coverages, conditions, ~nd ra~imum ]~m~ts shall constitute a nmteriat breach of con~act upon which City may ~mmediately mrm~ste this contract, or ~t its discretion City may procure or renew any such policy or any extended reporting period thereto and. may pay any snd all premiums in connection therewith, ~a all monies so paid by City ~h~n be repaid by Professional to City upon d~n~ct, or City may offset the cost of the premiums ag.i~q monies due tn Professional from City. (f) City reserves the right to request and receiw a cmified copy of any policy and any endorsement thereto. (g) The parties heretd understand and agree that City is relying on, and does not Waive or intend to waive by any provision of thi~ contract, the monetary ~irnitations (.presently $150,000.00 per person and $600,000 per occurrence) or ~ny other rights, immunities, and protections provided by the Colorado Govemmentsl Imratmity Act, Section 24-10-101 et seq., PSl-~71.doc P~ge 4 C.R.S, as from time to time mended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The panics hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIKSA) 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 Depa.ca'nent 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. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undemldng of the parties relevant to the subject rnatte~ thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project maner thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respect/.ve persons and/or addresses listed below or marled by certified mail return receipt requested, to: Professional: C~ of Aspen 136 South Galen~ SBt Street Address Aspen, Colorado 81611 City, State & Zip Code 13. Non-Discrimination. No discfim~n~on becanse of race, color, creed, sex, m~fiml'status, sff~ctio-~ or sexual orientation, family responsibility, natioml origin, ancestry., lmndic~, or religion shall be made in the employment of l~rsons to perform services under this conu~'t. Professional aD~s to me~t all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in cmploym~t. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operat~ as a w~ver of any subsequen~ breach of tbe s~me or any other mm. No t~nn, covmant, or condition of th~ Agr~mem can be waived except by the written consen~ 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 Profe~sionai te 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 forbeanmce or indulgence. P$1-971 .doc Page 15. Execution of Agreement by City. This agreement shall be binding upon a/l parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith- standing anything to the contrary contained herein, tiffs agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate wfitxen instrument fully executed by the Co) If any of the provisions of tiffs .agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to.. this understanding except those as contained herein at the time of the execution hereof and..tl~t after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be gow~x~ed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WI-IEREOI:, the parties hereto have execnt~, or mused to be executed by their duly authorized officials, this Agreement in thr~ copies each of which shall be deemed an Ori~n~l on the date herei.l~,..~er wri1:te~. [$IGNATUI~..~ ON FOLLOWING PAGE] P$1-971.~,oc Page 6 ATTESTED BY: CITY OF ASPEN, COLORADO: Date: '[ l/l~])-] . PROFESSIONAL: By: ~ Date: -//(~' ~ ~. O/ P$1-?71.doc Page 7 EXI!TR_ IT "A" to Professional Services Agreement Scope of Work (To be completed prior to execut/on of Agreement) PSI-971,~oc Page 8 Exhibit A To Professional Services Agreement Scope of Work This agreement is for Construction "Clerk of the Works" Professional Services for of the Truscott Itonsing portion of the Truscott Project (Project) in Aspen, Colorado. This project is approximately $13,000,000 two-phased housing project Phase 1 is 58 new units and Phase 2 is 41 new units and 46 unit that will have minor rehab work. The scheduled date of completion of the 99 units is November 2002. In general, responsibilities include architect and contractor coordination, change order approvals, material approvals, payout approvals, and financial tracldng of funding sources and uses. See attached Exhibit A.1 for further description of the Scope of Work for this Project. This will include the Professional's (Consultant's) Responsibilities and the City's (Owner's) Responsibilities, Responsibility for Cost and Time, and Miscellaneous Provisions. The Project i~ currently under construction as described below. The Consultant's liabilities and responsibilities for construction prior to the date of this agreement will be waived. 1. Phase 1 a. All excavation, footings, and foundations for all buildings. b. Structural steel for Buildings A and B. c. Concrete decks for Buildings A and B. d. Exterior walls for Buildings A and B. e. All underground sewer and water house services. f. Elevator well. 2. Phase 2 a. Excavation and footings for Building C. b. Portions of the foundation walls for Building C. Photographs will be used to supplement and verify the above. Consultant's Responsibilities 1. The Consultant shall review the drawings, the specifications, thc Contractoi"s estimate, the schedule, and thc Archit~t's m~d Contractor's contra~ts with th~ Owner. Thes~ shall b~ des~n'b~ and · included in this contract by wr/tten agreement after they have bees delivered to the Consultant Z ~ 2. The Consultant shall verbally notify the Owner (with wtittea . coatL-matioa~-' . .... ~ when the consul~nr bet/eves the requirements of a coaIra~t document are not being t-~asonably fulffiled to meet local industry standards. 3. Thc Consultant shall r~view requests from the Owner, the Architect and the Coatractor for the interpretat/on of contract documents and assist in the resolution o£problems. 4. The Consultant shall review writtea requests for chang~::qr, der$. 5. The Consultant ~sl! assist the Owner in the review, evalualion and documentation of c]-,dms for additional com~nsation 6. The Consultat~ shall review, within a reasonable amotmt of time at, er receipt, shop drawings, product da(a, samples and other submittals from the Conlxactor - 7. The Consultant shall review, within a reasonable time after receipt, thc ContracWr's applications for payment S. Th~ Consulhant's adv/~e about the conlractors application for payment X .~ shall~be a representation that thc CcnastOtnnthas 1)made to cheek the quality or , of the work ' -- The Consultant shall, within a reasonable time after r~c~ipt of notice, observe the Contractor's final testing and start-up of ut/I/ties, operational systems and equipment. 0.The Consultant shall receive warranties and similar submittals required by the contract documents fi.om the Arckitect and turn them over to the Owner along with ke.vs, n,~nuals, record drawings and rna/ntenance sloe 'ks4hat have been delivered to the Consultant by the Architect. .The Consultant shall attend weekly meetings th~ may be hem between the Arolgtect and the Contraaor to discuss such matters as procedures, progress and schedulfi~g,~ 12.The Consul~,~t shall not take over or be r~ponm"ole for the duti~ or liabilities of the Contractor, his Subcontractors, his Material Men; the Architect and his Consultants; the Engineers; Ih~ Testing Companies; the Designers or anyone else hired by the Owner. 13. Consultant shall report to the Director of Development and Construction of the Aspen Pitkin County Housing Authority. 14. Don Reinarz will be the exclusive representative of the Colorado General Construction for the Project. Owner's Resoonsibilifies 1. The Owner shall provide full information re~arding thc requirements for thc project, including all contracts and agreements with the Co~tractor, the Architect, thc Bn~ineers, the Testing Companies, the DcsilFlers or anyone els~ hired by the Owner. The O~er shall also furnish all drawin§s, speciiicagons, estimates, schedules and budgets related to the project. These shall be d~scHbed and inoluded in the oontra~t by written agreera~nt after they have b~n delivered to the Consultant by tho Owner. 2. Tho Owner shall establish and update an overall budget for tho projoot as necessary. Tho budget shall contain a reasonably amount for oonting~ncy. 3. Tho Owner shall fiflfill his financial obligations under this agreement and for the performance of the work under the'entire proje~t. 4. Tho Owner shall furnish structural, moohanical, chemical, air and water pollution tests, tests for hazardous materials, other laboratory and environmental tests, inspecxions and reports required by law or the oontract dooumonts. 5. Tho C~vncr shah furnish all legal, accounting, insura~o¢ counseling servioes, supplies and personnel, as may bo neoessary at any for tho proj~/r., inoludlng auditing servioes the Owner may require to verify the Contractor' Applications for payment or ~ ascertain how or for what purposes tho Contractors have used the n~oncy paid by or on behalf of the Owner. 6. The servio~s, information and reports required by this agreement shall b~ furnished at the Owner's expense, and the Co~ullant shall b~ ~atitlcd to rely upon the accuraoy and completeness therco£ 7. Prompt w~tten not/oe shaJl be given by the Owner to tho Consultant if the Owner becomes aware of any fault of dofoot in the proj~ctor non--oon£ormance with the contract dooumcnts. 8. Information or services under the Owner's control shall be fumishext to tl~ Consaltant by the Owner with reasonablc prompii~ess to avoid delay in the orderly progress of tho Consultant's s~rvices and the progress o~ ~ work. lO.It/s the Owner's obligation to s¢care the faithful and thn¢ly per/ormance of the duties of the Arclgtect, the Contractor, the En~/n~rs, ~nd all others to whom the Owner may award contracts related to the project. ... Responsibility for Construction Cost a,nd .Time 1. Tile Consultant is not responsible for tM cos~ or time of construct/on. Evaluations of the Owner's Proje,~t Budget and schedule prepared by the Consultant represent the Consultant's b~st judgment as a person or ~ntity familiar with the consixucfion industry. It is recognized, however, that neither the Consultant nor Iht Owner has control over thc cost of labor, materials or equipment, over Contractor's methods of detea~s~inmg bid prices, or over COml~titive bidding, market or negotiating conditiona. Accordingly, the Consultant cannot md does not warrant or represent that bids, negotiated prices or schedale will not vary from the Project Budg~ propose~l, established or approved by the Owner, or from any cost estimate or evaluation prepared by the Consultant. 2. Ho fixed limit of construction cost or time shall b~ establi~ed as an obligation of this agre, em~nt. Miscellaneous Provisions U~less otherwise prey/dod, this Agreement sbxll be governed by the law of the place where the Project is located. Causes of action between the pazties t° this Agr~mcnt pertaining to ~acts or failUres to act shall be d~emed to have accrued and the applicable statutes of limitations shall commence to nm not later than either thc date of Substanlial Completion for acts or failures to act occurring prior to Substaniial Completion, or the date of issumlce of thc final Project Certificate for pa}~nent for acts or failures to act occurring afl:er Substantial Completion. T~s Agreement represents the entire ~ between tho Owner and Consultant and supersedes all prior negotiations, representat/ons or agreements, either written or ~ral. Th/s Agreement may be amended only by wr/tten instrument signed by the Owner and Consultant. Nothing contained in this Agreement ~11 create a contractual relationship with or a c~s¢ of action in favor of a third party against either the Owner or Consultant. Unless otherwise prov/ded in this Agroeracnt, tho Consultant shall have no responsibility for the :l/scovery, presence, bangling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to ~sbestos, asbestos products, polycMorinated biphenyl (PBC) or other toxic substances. EXHIBIT "B" to Professional Services A~eement Rate Schedule (To be completed prior to execution of Agreement) Compensation Don Reinarz 85/hour Travel 0.40/mi . ... ~ -: Copies 0.20 eaoh F~xes 0.50 ¢~h Phone, Postage Photos and Othor out of pocket expenses Cost plus 10% Calculation of maximum compensation: 40 hrs/wk x 52 weeks x $85/hr = $176,800 Minimum work hours per week = 24 hrs Except for sickness and vacation. P$1-971.do¢ Page 9