HomeMy WebLinkAboutresolution.council.110-13 RESOLUTION #I 10
(Series of 2013)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND TEAM PAIN ENTERPRISES, INC. AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
Rio Grande Skate Park Street Skate Expansion between the City of Aspen and
Team Pain Enterprises, a true and accurate copy of which is attached hereto as
Exhibit "A";
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 that Contract
for the Rio Grande Skate Park Street Skate Expansion, between the City of Aspen
and Team Pain Enterprises, a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager to execute said agreement on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 9th day of December 2013.
teven Skadron, 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 December 9, 2013
9
Kathry S. Koch, City Clerk
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The 011V orlispen
CITY OF ASPEN STANDARD FORM OF AGREEMENT-2009
PROFESSIONAL SERVICES
City of Aspen Project No. 2013-103.
AGREEMENT made as of 9th day of December,in the year 2013.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Parks Department
130 South Galena Street Total: $25,000.00
Aspen, Colorado 81611
Phone: (970)920-5120
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
Tim Payne until it has been approved by the City
c/o Team Pain Enterprises,Inc. Council of the City of Aspen.
890 Northern Way Suite D-1 City Council Approval:
Winter Springs,FL 32708 Date: ��� I L-'
Phone: (407)-366-9221
Resolution No.:_r �/� /%hl
For the Following Project:
Rio Grande Skate Park Expansion Project
Exhibits appended and made a part of this Agreement:
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule.
Agreement Professional Services Page 0
The City and Professional agree as set forth below.
1. Scope of Work. Professional shall perform in a competent and professional manner the
Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein.
2. 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 timely
manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later
than November 3, 2014. Upon request of the City, Professional shall submit, for the City's
approval, a schedule for the performance of Professional's services which shall be adjusted as
required as the project proceeds, and which shall include allowances for periods 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 Professional.
3. Pa ment. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall
not exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually
agreed to by the parties the payments made to Professional shall not initially exceed the amount set
forth above. Professional shall submit, in timely fashion, invoices for work performed. The City
shall review such invoices and, if they are considered incorrect or untimely, the City shall review
the matter with Professional within ten days from receipt of the Professional's bill.
4. Non-Assi ability. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the
other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities
or obligations under this Agreement. Professional shall be and remain solely responsible to the City
for the acts, errors,omissions or neglect of any subcontractors' officers,agents and employees,each
of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the
extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any
sums due which may be due to any sub-contractor.
5. Termination of Procurement. The sale contemplated by this Agreement may be
canceled by the City prior to acceptance 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 Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor, by
giving notice, in writing, addressed to the other party, specifying the effective date of the
termination. No fees shall be earned after the effective date of the termination. Upon any
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
Agreement Professional Services Page 1
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.
9. Professional's Insurance.
(a) Professional agrees to procure and maintain,at its own expense,a policy or policies
of insurance sufficient to insure against all liability, claims, demands, and other obligations
assumed by the Professional pursuant to Section 8 above. Such insurance shall be in
addition to any other insurance requirements imposed by this contract or by law. The
Agreement Professional Services Page 2
Professional shall not be relieved of any liability, claims, demands, or other obligations
assumed pursuant to Section 8 above by reason of its failure to procure or maintain
insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts,
duration,or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain,the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the
City. All coverages shall be continuously maintained to cover all liability,claims, demands,
and other obligations assumed by the Professional pursuant to Section 8 above. In the case
of any-claims-made policy, the necessary retroactive dates and extended reporting periods
shall be procured to maintain such continuous coverage.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this
contract, and Employers' Liability insurance with minimum limits of 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. Evidence of qualified self-insured status may be substituted for the
Workers'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.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property 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 met by each employee
of the Professional providing services to the City under this contract.
(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
Agreement Professional Services Page 3
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 Immunity Act, Section 24-10-101 et
seq., C.R.S., as from time to time amended, or otherwise available to City,its officers, or its
employees.
10. 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 Risk
Management 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.
11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
Agreement Professional Services Page 4
12. Notice. Any written notices as called for herein may be hand delivered or mailed by
certified mail-return receipt requested to the respective persons and/or addresses listed above.
13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status,
affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or
religion shall be made in the employment of persons to perform services under this contract.
Professional agrees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term.No term, 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 Professional to which the same may apply and,
until complete performance by Professional of said term, covenant or condition, the City shall be
entitled to invoke any remedy available to it under this Agreement or by law despite any such
forbearance or indulgence.
15. Execution of 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.
16. Illegal Aliens—CRS 8-17.5-101 &24-76.5-101.
(a) Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms 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" 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.
Agreement Professional Services Page 5
1
"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.
(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 knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien,Professional shall:
Agreement Professional Services Page 6
s
(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 employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5),C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed 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 terminated, Contractor shall 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
affilms 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 federal law,
(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms 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 employed or
retained to solicit or secure this Contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees or
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
Agreement Professional Services Page 7
S �
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 Purchase Agreement without any liability by the City;
2. Debar of suspend the offending parties fiom 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 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.
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 ASPEN,COLORADO: PROF�ESSSSIO�NAAL:
[Signature] si ature
[ en ]
JBWNe-6'h B Y: Charles T. Payne
ame] [Name]
Title: Title: President
Date: Date: November 7, 2013
Approved as to form:
Attorney's Office
Agreement Professional Services Page 9
EXHIBIT B
Hourly Fee Schedule
Agreement Professional Services Page 11
Exhibit A
Rio Grande Skate Park Expansion Project
City Project No,2013-103
The primary goals of the project:
The proposed street skate expansion shall provide a safe, designated place for skateboarders to
develop their skills and enjoy the company of their peers. The skate park will be state-of-the-art
based on the latest skate park design principles and naturally blended into the surrounding
environment. The primary design goal is to feature a mix of street and transition-style terrain,with
skate elements designed for all age groups and ability levels.
The scope of work will include:
PART 1
• Design a Street Skate Park Expansion adjacent to the existing Rio Grande Skate Park;
• Conceptual Design
• Schematic Design
• Final Design
• Evaluate and absorb public comments/ desires to determine street skate park expansion
needs;through past/future meetings and open house documentation;
• Preparation of accurate construction cost estimates and project scheduling;
• The Design/Build Team to be present during major design efforts, design charrettes and
City Council meeting(s)
• At least one(1)public meeting to present Schematic Design for public comment;
• At least one(1)City Council meeting to present final design;
• Final Design for a Street Skate Park Expansion to the existing Rio Grande Skate Park
o Detailed Design,Construction Documents and Specifications;
EXHIBIT B
Fee Schedule
Agreement Professional Services Page 11
Exhibit B
STREET SKATE DESIGN SERVICES
FEE PROPOSAL FORM
Rio Grande Skate Park Expansion Project
City Project Number: 2013-103
The proposal must include the following breakdowns of cost along with employee billing
rate schedules of the Skate DesignlBuild Team. The Skate Design/Build Team shall bill
the City on an hourly basis not to exceed total fees for each phase as listed below.
Progress payments shall be billed on a monthly basis.
CONCEPTUAL DESIGN..........................................$ 2,500.00
SCHEMATIC DESIGN .......................................$ 5,000.00
FINAL DESIGN ...........................$ 5,000.00
CONSTRUCTION DOCUMENTS .................$ 12,500.00
TOTAL...........$25,000.00
TOTAL FEE WRITTEN:
Twen - ive thousand dollars and 00 cents