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HomeMy WebLinkAboutresolution.council.018-14 ATTACHMENT A RESOLUTION #18 (Series of 2014) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A VENDING AGREEMENT BETWEEN THE CITY OF ASPEN AND WE-CYCLE AUTHORIZING THE CITY MANAGER TO EXECUTE SAID VENDING AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a vending agreement for the operation of a bike share system, between the City of Aspen and WE-cycle, a true and accurate copy of which is attached hereto as Exhibit "A"; AND WHEREAS, the City of Aspen recognizes that bike sharing is complementary to its Transportation Demand Management programs and its goals of limiting traffic to 1993 levels and reducing air pollution and greenhouse gas emissions; 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 Vending Agreement for bike share operations, between the City of Aspen and WE-cycle 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 C' Council of the City of Aspen on the 7th day of April, 2014. i S even 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 April 7, 2014. Kath S. Koch, City Clerk LICENSE AND VENDING AGREEMENT THIS LICENSE AND VENDING AGREEMENT (this "Agreement"), is entered into this — day of 2014, by and between the City of Aspen, a municipal corporation (hereinafter, the "City") and WE-cycle, a Colorado nonprofit corporation (hereinafter "WE- cycle"). RECITALS A. WE-cycle is a Colorado nonprofit corporation operating a bicycle sharing program within the City of Aspen and Pitkin County, Colorado(the "Program"). B. WE-cycle 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 is exempted from licensing requirements pursuant to Section 14.08.050 of said Code, and WE-cycle is duly licensed to engage in the business of retail sales pursuant to Section 39-26-103, C.R.S. C. WE-cycle desires to conduct vending operations through WE-cycle Stations (defined below) at the agreed-upon locations within the City limits of the City of Aspen during the Term (defined below). D. Section 15.04.350 of the Municipal Code of the City of Aspen requires that WE- cycle obtain a license in order to conduct vending operations as described herein. E. The City desires to grant WE-cycle a license to conduct vending operations, all in accordance with the terms and conditions of this Agreement. AGREEMENT 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 to operate WE-cycle Stations within the areas described on Exhibit A hereto (each such described area referred to herein as a "License Area" and the areas together referred to herein as the "License Areas"). The square footage for each License Area is described in Exhibit A. The License granted herein shall include the right of WE-cycle to use the WE-cycle Stations for vending of bicycles (and related goods) in connection with the Program. 2. WE-cycle Stations. The WE-cycle Stations are moveable, non-permanent bicycle vending stations. The parties understand and agree that WE-cycle may change the locations of WE-cycle Stations in accordance with use patterns and demand of Program participants; provided, however, WE-cycle will discuss and obtain approval of any such changes with the City's I engineering, parks, transportation and parking departments before making such changes (and approval by the City shall not be unreasonably withheld, conditioned or delayed). The parties further understand and agree that the City may require WE-cycle Stations to be relocated from time to time to accommodate special events, construction projects, street closures, or other similar occurrences within the City; provided, however, the City will give WE-cycle reasonable advance written notice if the City requires any WE-cycle Station to be relocated, except in emergency situations. Reasonable advance notice shall be deemed to be approximately two weeks although a lesser time may be deemed reasonable under the circumstances. In-the event of an emergency the City shall provide WE-cycle with notice of such relocation as soon as practicable and shall use reasonable efforts to minimize any damage to WE-cycle Stations. In the event the City requires the relocation of any WE-cycle Station pursuant to this Section 2, the City shall either relocate such WE-cycle Stations or provide assistance to WE-cycle in relocating such WE-cycle station(s). 3. Permission to Vend. The City hereby grants WE-cycle permission to operate the Program under Section 15.04.350 of the Municipal Code of the City, and for that purpose only, to occupy the WE-cycle Stations in the License Areas, between the hours of 12:00 am and 12:00 a.m.; May 1, 2014 through November 10, 2014. WE-cycle will conduct its vending business in such a manner as to minimize police and administrative costs to the City. The City understands that the WE-cycle Stations shall be used by the general public in connection with the Program. 4. Term. The term of this Agreement, and the License granted herein, shall commence on May 1, 2014 and shall terminate on November 10, 2014; provided, however, the City shall have the right to terminate this Agreement by delivering written notice of termination (including the reason for such termination) to WE-cycle not less than sixty (60) days prior to the termination date. 5. Reasonable Care in Placement and Maintenance. WE-cycle agrees to use reasonable care in placement and maintenance of WE-cycle Stations within the License Areas, and agrees to avoid damage to the land and other improvements within the License Areas. 6. Station and Bike Advertising Allowance. The City hereby grants to WE- cycle permission to advertise upon the designated advertising surfaces of the WE-cycle Stations (and bicycles and related equipment) as described in Exhibit B. WE-cycle agrees to the advertising standards regarding content and maintenance as described in Exhibit 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 parry at the respective address shown below: CITY OF ASPEN: City Manager City of Aspen 2 130 S. Galena St. Aspen, CO 81611 GRANTOR: WE-cycle Attn: Mirte Mallory PO Box 360 Aspen, CO 81612 8. Maintenance of License Areas. WE-cycle shall maintain the License Areas as provided under this Agreement and keep them free of all litter and debris. WE-cycle shall not permit any disorderly conduct or nuisance whatsoever within the License Areas. 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 License Areas 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-Assi ng ability. This Agreement may not be transferred or assigned by either party without the 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, 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. H. WE-cycle's Insurance. WE-cycle shall procure and maintain the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance reasonably 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 3 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. 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. 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. 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 may 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. 12. Failure to Maintain Insurance; No Waivers the City. 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 the City may immediately terminate this Agreement, or at its discretion the 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 the City upon demand, or the City may offset the cost of the premiums against monies due to WE-cycle from the City. The City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 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 4 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. Execution of Agreement by 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. 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. 5 (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. (e) In the event of a dispute arising under this Agreement, the substantially prevailing party in such dispute shall be entitled to collect from the substantially non-prevailing party its reasonable attorneys' fees and costs incurred in such dispute. [signature page follows] 6 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. CITY OF ASPEN, COLORADO, a municipal or ion By: Name: ? t�u,i Gig Title: WE-CYCLE, a Colorado nonprofit corporation By: `� Name: Mirte Mallory Title: Director 7 EXHIBIT A Description of License Areas - 2014 WE-cycle Station Silver Queen Gondola 1 Rubey ■ Park 6 DURANT HVVY 8,2 COOPERQ HYMAN H04. �'� ¢ � �2 MAIN ■ �5. SLEEKER Cn Rio Grande Parking HALLAM 1 . Rubey Park Plaza 2. Paepcke Park - Garmisch I Main 17 dock : 32.5 x 15 feet 15 dock : 42.5 x 10 feet 3. Mill I Hopkins - 1 parking spot 4. City Hall - Galena I Hopkins - On grass 12 dock : 30 x 16 feet 11 dock : 36 x 10 feet h` 77 'YM q ate LE 5. Galena Plaza I Parking Garage 6. Original I Cooper - 1 parking spot 12 dock : 30 x 9 feet 11 dock : 36 x 10 feet a , . ' t EXHIBIT B Advertising Standards STATION SURFACES 1. SOLAR PANEL 2. STATION HEADER + FOOTER 3. MAP + SPONSOR PANEL 4. KIOSK '' EXHIBIT B Advertising • . • BICYCLE SURFACES 1. SKIRTGUARD 2. DOWNTLIBE 3. 1 CHAIN 4. FRONT BASKET 5. INTERIOR BASKET 6. STEM liiii;: . hill , .