HomeMy WebLinkAboutresolution.council.010-21 RESOLUTION #010
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MOUNTAIN WEST SERIES OF LOCKTON COMPANIES LLC
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 professional
services agreement between the City of Aspen and Mountain West Series of
Lockton Companies LLC, 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 the professional
services agreement between the City of Aspen and Mountain West Series of
Lockton Companies LLC, a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager to execute said contract on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 26th day of January, 2021.
Torre, Mayor
I, Nicole Henning, 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 January 26, 2021.
c
Nicole Henn' g, City Clerk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT CITY OFASPEN
PROFESSIONAL SERVICES
City of Aspen Contract No.:
AGREEMENT made this 20 day of November, in the year 2020.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Sara Ott
130 South Galena Street Total: $97,500.00
Aspen, Colorado 81611
Phone: (970)920-5079
If this Agreement requires the City to pay
And the Professional: an amount of money in excess of
$50,000.00 it shall not be deemed valid
Mountain West Series of Lockton Companies, LL C until it has been approved by the City
c/o Mark A. Bundy,EVP and COO Council of the City of Aspen.
8110 East Union Avenue City Council Approval:
Suite 700
Denver, Colorado 80237 Date:
Phone: (303)414-6000
Resolution No.:
For the Following Project:
OCIP Brokerage Services for Burlingame Ranch Phase 3 Affordable Housing Development
RFP#2020-085
Exhibits appended and made a part of this Agreement:
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule.
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The City and Professional agree as set forth below.
I. 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 execution of this Agreement
and receipt of a written Notice to Proceed from the City.Professional shall 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 December 2022.
3. Payment. In consideration of the work performed, City shall pay Professional the
compensation specified in Exhibit B attached hereto . Except as otherwise mutually agreed to by the
parties, the payments made to Professional shall not initially exceed the amount set forth in Exhibit
B. 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-Assignability. 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. 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. For the avoidance of doubt,insurance carriers,
wholesalers, and insurance intermediaries shall not be considered sub-contractors under the terms of
this Agreement.
5. Termination of Procurement. The services contemplated b this Agreement may be
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canceled by the City prior to the effective date of this Agreement 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. Term and Termination of Professional Services. This Agreement will be in effect from the
effective date for a term of 25 months unless earlier terminated in accordance with this Section 6 of
the Agreement The Professional or the City may terminate the Professional Services component of
this Agreement,without specifying the reason therefor,by giving sixty(60)days advance notice, in
writing, addressed to the other party. 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 an liability to the City for damages sustained b the City b
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virtue of any breach of this Agreement by the Professional for a period of two (2) years after the
effective date of termination.
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
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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 officers,directors,
and employees 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 and
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employees,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 which arise out of this Agreement, to the extent and for an amount
represented by the degree or percentage 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 wrongful act, omission, professional error,
negligence, or willful misconduct of the Professional or any director, officer, or employee of the
Professional, or which arises out of any workmen's compensation claim of any employee 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.
Notwithstanding the foregoing, if it is determined by the final judgment of a court of competent
jurisdiction, or other final determination that such injury, loss, or damage was caused in whole or in
part by the wrongful act,omission,error,negligence,willful misconduct or other fault of the City, its
officers, or its employees, the City shall reimburse the Professional for the portion of the judgment
iattributable 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 its Services provided under this Agreement. The
Professional shall not be relieved of any liability, claims, demands, or other obligations
assumed pursuant to this Agreement 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 the 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 the Professional pursuant to its services provided
under this Agreement. 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 limits of ONE MILLION DOLLARS
($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00)
disease-policy limit,and ONE MILLION DOLLARS($1,000,000.00)disease-each
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employee.. Evidence of qualified self-insured status may be substituted for the
Workers' Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with combined single limits of ONE
MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION
DOLLARS ($2,000,000.00)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 combined single limits
for bodily injury and property damage of not less than ONE MILLION DOLLARS
($1,000,000.00) each accident 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 limits of ONE MILLION
DOLLARS ($1,000,000) each wrongful act and TWO MILLION DOLLARS
($2,000,000)aggregate.
(c) The Commercial General Liability policy and the Automobile Liability policy or policies
required above shall be endorsed to include the City and the City's officers and employees as
additional insureds. Every The Commercial General Liability policy and the Automobile
Liability 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 to the City shall be an ACCORD form completed
by the Professional's insurance agent as evidence that policies providing the required
coverages, conditions, and 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 provide notice of cancellation in accordance with the
provisions of the policies.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and limits shall constitute a material breach of contract upon
which City may immediately terminate this contract.
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(0 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
$350,000.00 per person and $990,000 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.
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 15.04.570,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 tern.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-fil1y. 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.
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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
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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.
"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 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
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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:
(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
affirms 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.
17. 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
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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 Purchase Agreement without any liability by the City; and
2. Recover such value from the offending parties.
18. 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.
19. Limits on Liability, Warranties and Obligations of Professional.
(a) Surplus Lines: Insurance Premiums and Related Tax Obligations. Professional may
not be able to procure insurance in the admitted marketplace on the terms and conditions
specified by City.In such event,Professional's insurance proposal may include placements
with insurer(s)not licensed to transact insurance in a particular jurisdiction and not subject
to the supervision of such state's insurance department. Any such surplus lines coverage
will be made pursuant to applicable insurance laws governing the placement of insurance
with non-admitted insurers. A state insurance guaranty fund will not respond in the event
the surplus lines insurer should become insolvent. Furthermore, policy forms, conditions,
premiums,and deductibles used by surplus lines insurers may be different from those found
in policies used in the admitted market. City is responsible for all insurance premiums due
and any applicable surplus lines, sales, use, excise or other taxes for insurance coverage
placed by Professional. If City fails to pay any premium in full by the due date indicated
on the premium invoice, the coverage may be subject to cancellation by the insurer(s) and
such nonpayment, in addition to any nonpayment of fees or expenses due to Professional
as set forth herein, shall be considered a material breach of this Agreement.
(b) Limitation of Liability. IN NO EVENT SHALL A PARTY BE LIABLE TO THE
OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY,
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SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION,LOST
PROFITS AND LOST BUSINESS), ARISING OUT OF OR RELATED TO THIS
AGREEMENT, EVEN IF IT HAS BEEN ADVISED OR IS AWARE OF THE
POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ARISING
IN TORT(INCLUDING NEGLIGENCE),CONTRACT,OR OTHER LEGAL THEORY.
IN-ANY EVENT, THE LIABILITY OF ONE PARTY TO THE OTHER FOR ANY
REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO TEN
MILLION DOLLARS ($10,000,000.00). THIS LIMITATION APPLIES TO ALL
CAUSES OF ACTION IN THE AGGREGATE. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED HEREIN, THE EXCLUSIONS AND
LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 20 (b) SHALL NOT
APPLY TO: 1) ANY DAMAGES AWARDED IN CONJUNCTION WITH A FINAL
JUDICIAL DETERMINATION OF FRAUD OR GROSS NEGLIGENCE OR 2)
PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO TANGIBLE
PERSONAL PROPERTY CAUSED BY THE NEGLIGENT, WILLFUL OR
INTENTIONAL ACTS OF A PARTY OR ITS EMPLOYEES, AGENTS OR
SUBCONTRACTORS. REFERENCES TO A PARTY IN THIS SECTION 20(b)
INCLUDE SUCH PARTY'S DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS,
AGENTS AND DOMESTIC AND INTERNATIONAL AFFILIATED ENTITIES.
(c) Accuracy and Completeness of Information. City shall be solely responsible for the
accuracy and completeness of all information furnished to Professional and/or to
underwriters, insurers, insurance-related intermediaries and/or other third parties as
necessary for the services contemplated herein. Professional shall not be responsible for
• independently verifying the accuracy or completeness of any information that City
provides, and Professional shall be entitled to rely on such information. Professional shall
have no liability for any errors or omissions in any services provided to City, including the
placement of insurance on City's behalf, that are the result of, arise from, or are based on
inaccurate or incomplete information provided to Professional. City understands that the
failure to provide accurate and complete information to an insurer, whether intentional or
by error, could result in the denial of claims or rescission of coverage altogether. City will
review all policy documents provided to City by Professional and shall inform Professional
of any inaccuracies, deficiencies or discrepancies contained therein.
(d) Use of a Particular Insurer. Professional is not obligated to utilize any particular
insurer. In addition,Professional is not authorized to make binding commitments on behalf
of any insurer, except under certain circumstances which Professional shall endeavor to
make known to City. Professional shall not be responsible for the solvency of any insurer
or its ability or willingness to pay claims, return premiums or other financial obligations.
Professional does not guarantee or make any representation or warranty that insurance can
be placed on terms acceptable to City. Professional will not take any action to replace
City's insurers unless City instructs Professional to do so.
(e) No Reliance. Any reports or advice provided by Professional should not be relied
upon as accounting, legal, actuarial or tax advice. In all instances, Professional
recommends that City seek independent advice on such matters from professional
accounting, legal, actuarial and tax advisors.
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(f) Responsibility for Insurance Programs. Professional will not be responsible for the
adequacy or effectiveness of any insurance programs or policies implemented or placed by
another broker, including, without limitation, any acts or omissions occurring prior or
subsequent to Professional's engagement.
(g) Relationship between the Parties. Professional will act as the City's insurance
broker with respect to the lines of insurance listed in Exhibits A and B. The City
acknowledges and agrees that in no event shall Professional owe any enhanced or special
duties to the City, express or implied, in fact or by law, whether referred to as a special
relationship or fiduciary relationship or otherwise, except to the extent required by
applicable law.
20. General Terms.
(a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b) If any of the provisions of this Agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration,change or modification shall be made except upon a writing .
signed by the parties.
(d) This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect. Venue is agreed to be exclusively in the courts of Pitkin County,Colorado.
21. Electronic Signatures and Electronic Records This Agreement and any amendments
hereto may be executed in several counterparts, each of which shall be deemed an original, and
all of which together shall constitute one agreement binding on the Parties, notwithstanding the
possible event that all Parties may not have signed the same counterpart. Furthermore,each Party
consents to the use of electronic signatures by either Party. The Scope of Work, and any other
documents requiring a signature hereunder,may be signed electronically in the manner agreed to
by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement
solely because it is in electronic form or because an electronic record was used in its formation.
The Parties agree not to object to the admissibility of the Agreement in the form of an electronic
record, or a paper copy of an electronic documents, or a paper copy of a document bearing an
electronic signature, on the grounds that it is an electronic record or electronic signature or that it
is not in its original form or is not an original.
22. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the
benefit of and be binding upon the City and the Professional respectively and their employee,
successors, assigns and legal representatives. Neither the City nor the Professional shall have the
right to assign, transfer or sublet its interest or obligations hereunder without the written consent
of the other party.
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23. Third Parties. This Agreement does not and shall not be deemed or construed to confer
is assign
or grant to any third party or parties, except to parties to whom Professional or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Professional
because of any breach hereof or because of any of the terms, covenants, agreements or conditions
herein contained.
24. Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions
of this Agreement,the prevailing party shall be entitled to its costs and reasonable attorney's fees.
25. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual
efforts of the parties hereto and the parties agree that no construction shall be made or presumption
shall arise for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of the Agreement.
26. Certification Re ag rding Debarment, Suspension, Ineligibility, and Voluntary Exclusion.
Professional certifies,by acceptance of this Agreement,that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any transaction with a Federal or State department or agency. It further certifies
that prior to submitting its Bid that it did include this clause without modification in all lower tier
transactions, solicitations,proposals, contracts and subcontracts. In the event that Professional or
any lower tier participant was unable to certify to the statement, an explanation was attached to
the Bid and was determined by the City to be satisfactory to the City.
. 27. Integration and Modification. This written Agreement along with all Contract Documents
shall constitute the contract between the parties and supersedes or incorporates any prior written
and oral agreements of the parties. In addition, Professional understands that no City official or
employee, other than the Mayor and City Council acting as a body at a council meeting, has
authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the
City. Any such Agreement or modification to this Agreement must be in writing and be executed
by the parties hereto.
28. Authorized Representative. The undersigned representative of Professional, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Professional for the purposes of executing this Agreement and that he/she has
full and complete authority to enter into this Agreement for the terms and conditions specified
herein.
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DocuSign Envelope ID:50D892FC-AD09-4F2A-847F-08B39717A441
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written •
above.
PROFESSIONAL: CITY OF ASP 6QRADO:
`F9'^1"BC7W4`[wS`7ignature] [Signature]
By: Mark A. Bundy By: Sara Ott
Title:EVP and COO Title: City Manager
Date:February 3, 2021 1 1:40 PM MST Date: 5/4/2021 1 11:01:33 AM PDT
•
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DocuSign Envelope ID:50D892FC-AD09-4F2A-847F-08B39717A441
• EXHIBIT A PROFESSIONAL SERVICES AGREEMENT
Scope of Services
A. Services for which Professional receives the Fee/Contract Amount
I. Program Marketing/Manauement
A. Market the General Liability,Excess Liability up to$10,000,0000 limits,
Builders' Risk, Earthquake and Flood(DIC), and Contractors Pollution Liability
up to$1,000,000 limits based on the project's needs in conjunction with Client
Risk Management parameters.
1. Prepare insurance coverage specifications.
2. Compile underwriting data and prepare market submission
3. Analyze carrier proposals and present recommendations
4. Bind coverage as directed by Client
5. Review policies for compliance with terms and conditions bound
B. Process changes,endorsements and premium invoices.
C. Issue required certificates of insurance in a timely manner.
D. Review premium audits for accuracy and correctness.
E. Conduct Client meetings as necessary.
F. Provide periodic reports relative to the bound program including a description of
open items.
G. Provide research and advice in response to Client questions as needed.
• II. Claims Management Services
A. Act as client claims advocate for all claims.
B. Establish claims service standards with carrier(s).
C. Review loss runs for accuracy and resolve any incorrectness with carrier.
D. Review denied claims for correct application of coverage.
E. Process claim notifications to appropriate insurance carriers.
III. Loss Control Services
A. Provide Loss Control consulting as needed.
Lockton shall serve as the OCIP Administrator for the project known as"Burlingame
Ranch Phase 3 Project".
I. OCIP Administration
A. Provide sample OCIP contract language to the Client and assist the Client's legal
counsel in finalizing the contract document.
B. Prepare an OCIP Manual that includes claims reporting procedures and
enrollment procedures and support the project team in the preparation of all bid
packages as relates to the OCIP.
C. Provide copies of the OCIP policies upon request by a contractor/subcontractor
for review with the approval of the client.
D. Ensure enrollment by all contractor and subcontractors required to participate in
the OCIP and verify compliance with the OCIP requirements.
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E. Explain the OCIP to contractors and provide assistance in preparing forms, and
determining interaction between the OCIP and the contractor's insurance
program.
F. Obtain(on Acord Form 25)certificates of insurance from enrolled contractors
evidencing required coverages and provide certificates of insurance to enrolled
contractors evidencing OCIP coverage.
G. Coordinate with Client's Third-Party compliance manager and advise of each
enrollment, including all necessary documentation.
H. Maintain Project documentation related to the OCIP.
I. Provide reports to Clients summarizing OCIP activities,progress and costs.
II. Program Closeout
A. Coordinated the insurance carrier(s)audit review.
B. Additional close-out activities as dictated by actual program design.
•
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DocuSign Envelope ID:50D892FC-AD09-4F2A-847F-08B39717A441
EXHIBIT B PROFESSIONAL SERVICES AGREEMENT
• Compensation Schedule
1. Fee.All services set forth in Exhibit A associated with providing OCIP services for the
OCIP lines of coverage will be performed by Professional for compensation in the form of a
fee in the amount of$97,500.
This Fee may be adjusted in future annual service periods by mutual written agreement of
the parties pursuant to Section 26 of the Agreement.
The fee shall be earned by Lockton based on the following schedule:
Fee Amount Earned Service Milestone Date
$48,750 Initiation of Marketing Efforts
$48,750 Binding of Coverage
2. Commission.All broker services not set forth in Exhibit A associated with placing the
following lines of coverage will be performed by Professional for compensation in the form
of commission payable by the City's insurers:
• Excess Liability Limits above$10,000,000
• Contractors Pollution Liability Limits above
• $1,000,000
• Owners Protective Professional Indemnity
• Any other elected limits and lines of coverages
outside of those listed in Exhibit A
3. Disclosure. In addition to the compensation set forth above,the City acknowledges,
consents and agrees that Professional may also receive other compensation such as incentive
or contingency payments or bonuses and/or supplemental commissions from insurance
companies, intermediaries(which may be affiliated with Professional)or other third parties
as a result of being an insurance broker(collectively,"Additional Compensation").
Professional may also receive interest or investment income on funds temporarily held by it,
such as premiums or return premiums, service fees or other compensation from premium
finance companies for administrative services provided to or on behalf of the premium
finance companies relative to the financing of client insurance premiums,and/or service fees
from insurers for consulting and/or administration services specific to an insurer.
•
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