HomeMy WebLinkAboutresolution.council.065-21 RESOLUTION #065
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING TWO CONTRACTS BETWEEN THE CITY OF
ASPEN AND THE FOLLOWING CONTRACTORS: TS&L AND KIMLEY-
HORN. 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,
between the City of Aspen and TS&L, a true and accurate copy of which is
attached hereto as Exhibit "A";
WHEREAS, there has been submitted to the City Council a contract for, between
the City of Aspen and Kimley-Horn, a true and accurate copy of which is attached
hereto as Exhibit `B";
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 two respective
contracts for $78,920.00 between the City of Aspen and TS&L and for $43,370.00
between the City of Aspen and Kimley-Horn, copies of which are 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 131" day of July 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, July 131h, 2021.
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Nicole Henning, Cit Jerk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT v 2009 CITY OFASPEN
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2021-186.
AGREEMENT made as of 30`I'day of June, in the year 2021.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Carly McGowan
130 South Galena Street Total: $43,370.00
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
Kim1e Horn until it has been approved by the City
y c/o Mark Lenters P.E. Council of the City of Aspen.
4582 South Ulster Street City Council Approval:
Suite 1500
Denver, CO 80237 Date:
Phone: 303-228-2300 Resolution No.:
For the Following Project:
2021 Traffic Signal Timing Study
Exhibits appended and made a part of this Agreement:
Exhibit A: Project Scope.
Exhibit B: Fees and Expenses.
The City and Professional agree as set forth below.
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1. Scope of Work. Professional shall perfonn 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 Dec
31, 2021. Upon request of the City, Professional shall submit, for the City's approval, a schedule for
the perfonnance 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. Payment. In consideration of the work perfonned, 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 Tn 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
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.
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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, 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,
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. Tile
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.
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(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 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 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 TWO MILLION DOLLARS ($2,000,000.00) 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 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 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 completed.by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and
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minimum limits are in fiill 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.
(c) 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.
(0 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
$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 tern, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
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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 tern, 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.
"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:
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(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:
(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.
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(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 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:
I. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4. Recover such value from the offending parties.
18. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon fiords for that purpose being appropriated, budgeted and otherwise made
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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. 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.
20. 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._
20. 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 agents,
representatives, 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.
21. Third Parties. This Agreement does not and shall not be deemed or construed to confer
upon 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.
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22. 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.
23. 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.
24. Certification Re ag rding Debarment Suspension Inelip
Jbility, 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.
25. lntekration 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.
26. 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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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.
CITY OF ASPEN, COLORADO: PROFESSIONAL:
DoauSigned by:
3W &.Q�t
(Signature) [Signature]
By: sara ott By: Brian Valentine, PE, LEED-AP
[Name] (Name]
Title: city Manager Title: Senior Vice President
Date: 7/15/2021 1 7:27:14 AM PDT Date:July 12, 2021
Approved as to form:
Attorneys Office
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EXHIBIT A PROJECT SCOPE
It is understood that the City of Aspen desires additional
traffic engineering study to include four (4) signalized
intersections on CDOT Highway 82 (Main Street) east of Maroon
Creek in regards to signal operations and pedestrian timing in
Downtown Aspen. Timing of traffic signals at four intersections
in Downtown Aspen is to be studied for options regarding signal
timing intervals to better accommodate pedestrian crossings at
signals and to facilitate smooth, efficient vehicle flows . The
traffic signals are located adjacent to each other along
Colorado State Highway 82 (Main Street) at Galena Street, Mill
Street, Monarch Street, and Aspen Street.
It is understood that there are on-going negotiations between
CDOT and Aspen staff to take over signal timing and maintenance
of these signals under a Senate Bill 8 standard
intergovernmental contract. Upon execution of the contract, the
City of Aspen desires a second phase (Task 2) . This will
include K-H personnel to field install new signal timings,
approved in Task 1, in the controllers and the fine tuning of
these settings on-site.
Kimley-Horn will provide the following services as stated below:
Task 1 : Intersection Timing Study and Report
Kimley-Horn will review the four Downtown Aspen intersection
controller timing plans provided by CDOT. The purpose of the
review is to determine the feasibility of changing signal timing
to better accommodate pedestrian movements in the Downtown area .
Time of day needs for multi-modal travel will be studied and
considered in the timing change options. Review of the four (4)
intersections will include analysis of up to 2 options for
pedestrian phasing timing changes . Signal timing options will
-include factors -'such--as capacity, pedestrian -and -vehicle safety,
and overall operations including pros and cons for each option.
Provide recommendations to the city for questions related to
the technical terms of the CDOT Signal Maintenance contract.
Deliverables
• Peak Hour Counts - Gather peak hour intersection traffic
counts at 4 locations to be done by others . Historical
counts from the city requested for the report but are not
required.
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• Field Review - Review existing signal timing in the field.
• CDOT Collision Data - Gather available collision data from
CDOT and review. Requesting data from the City as well but
not required.
• Traction Software travel time review before changes and
email data with report to project manager.
• Aspen Staff Meetings - Attend up to two (2) project
meetings via MS Teams or other suitable software .
• CDOT Traffic Communications - Call CDOT Region Traffic
Operations Engineer to discuss proposed timing changes and
document proposed changes via email .
• Traffic Signal Operations Review Report - Provide a 2-page
report summarizing the data, review comments, options, and
the feasibility of signal timing changes options to
facilitate pedestrian circulation and vehicle travel
efficiency for the four (4) intersections in Downtown Aspen.
Task 2 : Field Installation of Traffic Signal Timing Changes
Field installation of new timing plans in the four (4) traffic
signal controllers will be completed by K-H staff. Field review
of these intersections in regard to through traffic vehicle
travel times eastbound and westbound through the corridor and
review of pedestrian walk timing/operation/performance at each
of the signals in the Downtown will be completed. Traction
Software K-H software package is the tool that will be used to
track performance and included in a summary report . This tool
will help to show before and after travel times from field data
gathered and crowd sourced data then submitted in a brief
summary report to the Project Manager.
Deliverables
• Bench test controller signal timing plans in the K-H signal
- shop prior to- installation -in--the- four---(4)--signal - - -
controllers .
• Fine tune signal timing in the field after field
installation of the new timing plans in the four (4)
intersection signal controllers .
• Report (1-2 pages plus attachments) the travel time
comparisons and the pedestrian operations observed.
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EXHIBIT B FEES AND EXPENSES
Kimley-Horn will perform the services in Task 1 and Task 2 for a
Lump Sum fee of $ 43, 370 .
All permitting, application, and similar project fees will be
paid directly by the Client; should the Client request Kimley-
Horn to advance any such project fees on the Client' s behalf, a
separate invoice for such fees, with a ten percent (100) markup,
will be immediately issued to and paid by the Client.
Lump sum fees will be invoiced monthly based upon the overall
percentage of services performed. Payment will be due within 25
days of your receipt of the invoice and should include the
invoice number and Kimley-Horn project number.
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or
I
CITY OF ASPEN STANDARD FORM OF AGREEMENT v 2009 CITY OFASPEN
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2021-196.
AGREEMENT made as of 30"'day of June, in the year 2021.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Carly McGowan
130 South Galena Street Total: $78,920.00
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
Sd L LLC until it has been approved by the City
Council of the City of Aspen.
c/o Chad Harris
PO Box 1240 City Council Approval:
Grand Junction, CO 81520
Phone: 970-778-5215 Date:
Resolution No.:
For the Following Project:
Traffic Signal Maintenance Services
Exhibits appended and made a part of this Agreement:
Exhibit A: Bid Proposal
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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. 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. PayLnciit. 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 perforned 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-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. 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 acceptancc 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
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.
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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 frill 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, 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,
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
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
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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. hi the case
of any claims-made policy, the necessary retroactive dates and extended reporting periods
shall be procured to maintain such continuous coverage.
(i) Wakens' 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 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 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 TWO MILLION DOLLARS ($2,000,000.00) 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 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 lit-nits of ONE
MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS
($1,000,000)aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be
primary insurance, and any insurance carried by the City, its officers or employees, or
carried by or provided through any insurance pool of the City, shall be excess and not
contributory insurance to that provided by Professional. No additional insured endorsement
to the policy required above shall contain any exclusion for bodily injury or property
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damage arising from completed operations. Tile 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 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
$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.
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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 tern, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other terns. 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.
"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:
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(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 confines 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:
(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) Tenninate 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
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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 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:
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I. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4. Recover such value from the offending parties.
18. Fund Availability. Financial obligations of the City payable after the current fiscal year
arc contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal finds 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. General Terrnis.
(a) It is agreed that neither this Agreement nor any of its terns, 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.
20. 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 for►n 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.
20. 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 agents,
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representatives, 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.
21. Third Parties. This Agreement does not and shall not be deemed or construed to confer
upon 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.
22. 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.
23. 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.
24. Certification Regarding Debannent, Suspension,- ineligibility and Voluntary Exclusion.
Professional certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debannent, 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 detennined by the City to be satisfactory to the City.
25. 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.
26. 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 tenns and conditions specified
herein.
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.
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CITY OF ASP.L.?aQ�,ORADO: PROFESSIONAL:
DocuSiyned by:
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[Signa[Signature]61N9MEG04J .. U«63048418lKnaiuicj
By:
Sara Ott By: shad Harris
JNamcJ [Namcl
Title: city Manager Title:General Manager
Date: 7/15/2021 1 7:28:11 AM PDT Date 7/8/2021 1 6:29:15 PM MDT
Approved as to forni:
ty Attorney's Office
Agreement Professional Services Page 10
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Agreement Professional Services Page 11
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(State$Traffic& HWY Mtce) Rev 10/03
CITY OF ASPEN Region:3(vjm)
CONTRACT
THIS AGREEMENT is enteral into by and between the CITY OF ASPEN (hereinafter called the "Local
Agency"), and the STATE OF COLORADO acting by and through the Department of Transportation
(hereinafter called the"State"or"CDOT').
RECITALS:
1. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a
sufficient uncommitted balance thereof remains available for payment of project and Local Agency costs.
(Contract Encumbrance Amount: $172,346.00).
2. Required approval, clearance and coordination have been accomplished from and with appropriate agencies.
3. Scction43-2-102 and 103,C.R.S.,require the State to maintain State highways(including where such highways
extend tlirotlgll a cityoran incorporated town),and Scctio1143-2-135(l)(i),C.R.S.,as amended,requires the State
to install,operate,maintain and control,at State expense,all traffic control devices on the State highway system
within cities and incorporated towns.
4. The parties desire to enter this contract for the Local Agency to provide some or all of the certain Highway
maintenance services on State highways that are the responsibility of the State under applicable law,and for the
State to pay the Local Agency a reasonable negotiated fixed rate for such services.
5. The parties also intend that the Local Agency shall remain responsible to perform any services and duties on State
highways that are the responsibility of the Local Agency under applicable law, at its own cost.
6. The State and the Local Agency have the authority, as provided in Sections 29-1-203,43-1-106,43-2-103,
43-2-104,and 43-2-144, C.R.S.,as amended,and if applicable, in an ordinance or resolution duly passed and
adopted by the Local Agency, to enter into contract with the Local Agency for the purpose of maintenance of
traffic control devices on the State highway system as hereinafter set forth.
7. The Local Agency has adequate facilities to perform the desired maintenance services on State highways within
its jurisdiction.
THE PARTIES NOW AGREE THAT:
Section 1.Scope of Work
The Local Agency shall perform al I maintenance services for the specified locations located within the Local Agency's
jurisdiction and described in Exhibit A. Such services and highways are further detailed in Section 5.
Section 2.Order of Precedence
In the event of conflicts or inconsistencies between this contract and its exhibits,such conflicts or inconsistencies shall
be resolved by reference to the documents in the following orderofpriority:
I. Special Provisions contained in section 22 of this contract
2. This contract
3. Exhibit A(Scope of Work)
4. Exhibit C(Option Letter)
5. Exhibit D(Encumbrance Letter).
Section 3.Term
This contract shal I be effective upon the date signed/approved by the State Control lcr,or designee,or on July 1,2022,
whichever is later.The term of this contract shall be for a term of FIVE(5)years.Provided,however,that the States
financial obligation for each subsequent,consecutive fiscal year of that term after the first fiscal year shall be subject
to and contingent upon funds for each subsequent year being appropriated,budgeted,and otherwise made available
therefor.
Section 4.Project Funding and Payment Provisions
A. The Local Agency has estimated the total cost of the work and is prepared to accept the State funding for the
work, as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authorized
representatives of the Local Agency,which expressly authorizes the Local Agency to enter into this contract and
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to complete the work under the project.A copy of any such ordinance or resolution is attached hereto and
incorporated herein m Exhibit B.
B. Subject to the terms of this contract,for the satisfactory performance of the maintenance services on the
Highways, as described in Section 5, the State shall pay the Local Agency on a lump sum basis, payable in
monthly installments,upon receipt of tile Local Agency's Statements,as provided herein.
C. The State shall pay the Local Agency for the satisfactory operation and maintenance of traffic control devices
under this agreement at the rates described in Exhibit A.
D. The Local Agency will provide maintenance services as described in Exhibit A, for a total maximum amount
of$172,346.00 per State fiscal,year,and a maximum contract total shall not exceed the cumulative rive-
year total of$502,250.00.The negotiated rate per location shall remain fixed for the full five-year term of the
contract,unless this rate is renegotiated in accord with the procedure set forth herein in Section 17. The total
payments to the Local Agency during the termof this contract shall not exceed that maximum amount,unless this
contract is amended. The Local Agency will bill the State monthly and the State will pay such bills within 45
days. y
E. The Statements submitted by the Local Agency for which payment is requested shall contain an adequate
description of the type(s) and the quantity(ies) of the maintenance services performed,the date(s) of that
performance,and on which specific sections of the hightti-ays such services were performed,in accord with
standard Local Agency bi I I i ng standards.
F. If the Local Agency fails to satisfactorily perform the maintenance services or if the Statement submitted by the
Local Agency does not adequately document the payment requested,after notice thereof from the State,the State
may deduct and retain a proportionate amount from the monthly payment, based on the above rate, for that
segment or portion.
Section 5:State&Local Agency Commitments:
A. The Local Agency shall perform the maintenance services for the certain State highway system locations
described herein. Such services and locations are detailed in Exhibit A.
B. The Local Agency shall operate and maintain the specific traffic control devices,and at the particular locations,
all as listed on Exhibit A, in a manner that is consistent with current public safety standards on State highways
within its jurisdictional limits,and in conformance with applicable portions of the'Manual on Uniform Traffic
Control Devices"and the"Colorado Supplement"thereto,which are referred to collectively as the "Manual"and
which are incorporated herein by reference as terms and conditions of this agreement.The Local Agency shall
provide all personnel,equipment, and other services necessary to satisfactorily perform such operation and
maintenance.
C. The Parties shall have the option to add or delete,at any time during the term of this agreement and subject to
§17 of this agreement,one or more specific traffic control devices to the list shown in Exhibit A and therefore
amend the maintenance services to be performedbythe Local Agency tinder this agreement.The State may amend
Exhibit A by written notice to the Local Agency using an Option Letter substantiallycquivalent to Exhi bit C.
D. The Local Agency may propose,in writing,other potential specific traffic control devices to
be operated and maintained by the Local Agency during the term of this agreement,based on the same rates that
had been initially agreed to by the Local Agency in Exhibit A. If the State determines in writing that operation
and maintenance of those other devices by the Local Agency is appropriate,and is desirable to the State,and if
the State agrees to add such devices to this agreement,then the State shall,by written Option Letter issued to the
Local Agency in a form substantially equivalent to Exhibit C,add such devices to this contract.
E. The Local Agency shall perform all maintenance services on an annual basis.The Local Agency's performance
of such services shall comply with the same standards that are currently used by the State for the State's
performance of such services,for similar type highways with similar use,in that year,as determined by the State.
The State's Regional Transportation Director,or his representative,shall determine the then current applicable
maintenance standards for the maintenance services. Any standards/directions provided by the States
representative to the Local Agency concerningthe maintenance services shall be in writing.The Local Agency
shall contact the State Region office and obtain those standards before the Local Agency performs such services.
Section 6.Record Keeping
The Local Agency shall maintain a complete file of all records,documents, communications,and other written
materials that pertain to the costs incurred tinder this contract.The Local Agency shall maintain such records for a
period of three(3)years after the date of termination of this contract or final payment hereunder,whichever is later,
or for such further period as may be necessary to resolve any matters which may be pending.The Local Agency shall
make such materials available for inspection at all reasonable times and shall permit duly authorized agents and
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employees ofthe State and, if applicable,FHWA to inspect the project and to inspect,review and audit the project
records.
Section 7.7crmination Provisions
This contract may be terminated as follows:
A. This contract may be terminated by either party,but only at the end of the State fiscal year(June 30),and only
upon written notice thereof sent by registered,prepaid mail and received by the non-terminating party, not later
than 30 calendar days before the end of that fiscal year. In that event, the State shall be responsible to pay the
Local Agency only for that portion of the highway maintenance services actuallyand satisfactorily performed up
to the effective date of that termination,and the Local Agency shall be responsible to provide such services up to
that date,and the parties shall have no other obligations or liabilities resulting from that termination.
Notwithstanding subparagraph A above, this contract may also be terminated as follows:
B. Termination for Convenience.The State may terminate this contract at any time the State determines that the
purposes ofthe distributionof moneys under the contractwvould no longcrbe served by completionof the project.
The State shall effect such terminationby giving written notice ofterminationto the Local Agency and specifying
the effective date thereof,at least twenty(20)days before the effective date of such termination.
C. Termination forCause.If,through any cause,the Local Agency shall fail to fulfill,ina timelyand propermanner,
its obligations under this contract,or if the Local Agency shall violate any of the covenants, agreements,or
stipulations of this contract,the State shall thereupon have the right to terminate this contract forcause by giving
written notice to the Local Agency of its intent to terminate and at least tcti(10)days opportunity to cure the
default or show cause why termination is otherwise not appropriate, in the event of termination,all finished or
unfinished documents,data, studies,surveys,drawings,maps,models,photographs and reports orother material
prepared by the Local Agency under this contract shall,at the option of the State,become its property,and the
Local Agency shall be entitled to receive just and equitable compensation for any services and supplies delivered
and accepted.The Local Agency shall be obligated to return any payments advanced under the provisions of this
contract.
Notwithstanding the above, the Local Agency shall not be relieved of liability to the State for any damages
sustained by the State by virtue of any breach of the contract by the Local Agency, and the State may withhold
payment to the Local Agency for the purposes of mitigating its damages until such time as the exact amount of
damages due to the State from the Local Agency is determined.
if after such termination it is determined, for any reason, that the Local Agency was not in default or that the
Local Agency's action/inactionwas excusable,such tenninationshallbe treated as a termination forconvenience,
and the rights and obligations of the parties shall be the same as if the contract had been terminated for
convenience,as described herein.
D. Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local Agency is to be paid,
reimbursed,or otherwise compensated with federal and/or State funds which are available to the State for the
purposes of contracting forthe project providedfor herein,and therefore,the Local Agency expresslyundcrstands
and agrees that all its rights,demands and claims to compensation arisingunder this contract are contingent upon
availability of such funds to the State. in the event that such funds or any part thereof are not available to the
State,the State may immediately terminate or amend this contract.
Section 8.Legal Authority
Tire Local Agency warrants that it possesses the legal authority to enter into this contract and that it has taken all
actions required by its procedures,by-laws,and/or applicable lave to exercise that authority,and to lawfully authorize
its undersigned signatory to execute this contract and to bind the Local Agency to its terms.The persons)executing
this contract onbchalf of the Local Agency warrants that such person(s)has full authorization to execute this contract.
Section 9.Representatives and Notice
The State will provide liaison with the Local Agency through the State's Region Director,Region 3,222 S.Gth Street,
Room 100,Grand Junction,CO 81.Said Region Directorwill also be responsible for coordinating the States activities
under this contract and will also issue a"Notice to Proceed"to the Local Agency for commencement of the work.All
communications relating to the day-to-day activities for the work shall be exchanged between representatives of tlx
State's Transportation Region 3 and the Local Agency. All communication,notices,and correspondence shall be
addressedto the individuals identi fiedbelow.Eitherparty may from time to time designate in writing new orsubstitute
representatives.
If to State If to the Local Agency
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CDOT Region:3 City of Aspen
Adrianne Staley Carly MCGOw,in
Project Manager Project Manager I
222 S.6th Street,Room 100 201 N.Mill Street,Suite 203
Grand Junction,CO 81501 Aspen,CO 81611
970-683-6278 970-309-2690
Section 10.Successors
Except as herein otherwise provided,this contract shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns.
Section 11.11ird Party Beneficiaries
It is expressly understood and agreed that the enforcement of the terms and conditions of this contract and all rights
ofaction relating to such enforcement,shall be strictly reserved to the State and the Local Agency.Nothing contained
in this contract shall give:or allow any claim or right of action whatsoever by any other third person.It is the express
intention of the State and the Local Agency that any such person or entity,other than the State or the Local Agency
receiving services or benefits under this contract shall be deemed an incidental beneficiary only.
Section 12.Governmental Immunity
Notwithstanding any other provision of this contract to the contrary,no term or condition of this contract shall be
construed or interpreted as a waiver, express or implied,of any of the immunities,rights,benefits,protection,or other
provisions of the Colorado Governmental Immunity Act, §24-10-101,et seq.,C.R.S.,as now or hereafter amended
'llic parties understand and agree that liability for claims for injuries to persons or property arising out of negligence
of the State of Colorado, its departments, institutions,agencies,boards, officials and employees is controlled and
limited by the provisions of§ 24-10-101,et seq., C.R.S., as now or hereafter amended and the risk management
statutes,§§24-30-1501,et seq.,C.R.S.,as now or hereafter amended.
Section 13.Severability
To the extent that this contract may be executedand performance ofthe obligations of the parties may be accomplished
within the intent of the contract,the terms of this contract are severable,and should any term or provision hereof be
declared invalid or become inoperative for any reason,such invalidity or failure shall not affect the validity of any
other term or provision hereof.
Section 14.Waiver
'flue waiver of any breach of a tern,provision,or requirement of this contract shall not be construed or deemed as a
waiver of any subsequent breach of such term, provision, or requirement,or of any other term, provision or
requirement.
Section 15.Enti re Understanding
This contract is intended as the complete integration of all understandings between the parties. No prior or
contemporaneous addition,deletion,or other amendment hereto shall have any force or effect whatsoever, unless
embodied herein by writing. No subsequent novation, renewal, addition, deletion,or other amendment hereto shall
have any force or effect unless embodied in a writing executedby the parties and approved pursuant to the State Fiscal
Rules.
Section 16.Survival of contract Terms
Notwithstanding anything herein to the contrary,the parties understand and agree that all terms and conditions of this
contract and the exhibits and attachments hereto which may require continued performance,compliance or effect
beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State
as provided herein in the event of such failure to perform or comply by the Local Agency.
Section 17.Modification and Amendment
This contract is subject to such modifications as may be required by changes in federal or State law, or their
implementing regulations.Any such required modification shall automatically be incorporated into and be part of this
contract on the effective date of such change as if fully set forth herein.Except as provided above,no modification of
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this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is
properlycxccutcdand approved in accordance with applicable law.
A. Amendment
Either party may suggest renegotiation of the terns of this contract,provided that the contract shall not be subject
to renegotiation more often than annually, and that neither party shall be required to renegotiate.If the parties
agree to change the provisions of this contract,the renegotiated terms shall not be effective until this contract is
anlended/modif icd accordingly in writing. Provided,however,that the rates will be modified in accordance with
applicable cost accounting principles and standards (including sections 24-107-101, ct scq., C.R.S. and
implementing regulations),and be based on an increase/decrease in the"allowable costs"o f performing the Work
Any such proposed renegotiation shal I not be effective unless agreed to in writing by both parties in an amendment
to this contract that is properly executed and approved by the State Controller or dclegee.Any such rate change
will go into effect on titc first day of the first month following the amendment execution date.
B. Option Letter
a. The State may increase/dccrease the quantity ofgoods/services described in ExhibitA at tile same unit prices
(rates)originally established in the contract.The State may exercise the option by written notice to the Local
Agency in a form substantially equivalent to Exhibit C.
b. As a result of increasing/decreasing the locations,the State may also unilaterally increase/decrease the
maximum amount payable under this contract based upon the unit prices(rates)originally establ ished in the
contract and the schedule of services required,as set by the terms of this contract.The State may exercise the
option by providing a fully executedoptionto the Local Agency,in a form substantiallyequivalent to Exhibit
C,immediately upon signature of the State Controller or an authorized delegate.The Option Letter shall not
be deemed valid until signed by the State Controller or an authorized delegate.Any such rate change will go
into effect on the first day of the first month fol lowing the option letter execution date.
C. State Encumbrance Letter
The State may encumber the funds up to the maximum amount allowed during a given fiscal year by unilateral
executionofan encumbrance letter in a form substantially equivalent to Exhibit D.The State shall provide a fully
executed encumbrance letter to the Local Agency after execution.Delivery/performance of the goods/services
shall continue at the same rate and under the same terms as established in the contract.
Section 18.Disputes
Except as otherwise provided in this contract,any dispute concerning question of fact arising under this contract,
which is not disposed of by agreement,will be decided by the Chief Engineer of the Department of Transportation.
The decisionof the Chief Engineer will be final and conclusive unless,within 30calendar days afterthe date of receipt
of a copy of such written decision, the Local Agency mails or otherwise furnishes to the State a written appeal
addressed to the Executive Directorof the Department of Transportation.In connect ionwith any appeal proceeding
under this clause,the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of
its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the
performance of the contract in accordance with the Chief Engineer's decision.The decision of the Executive Director
or his duly authorized representative for the determination of such appeals will be final and conclusive and serve as
final agency action. This dispute clause does not preclude consideration of questions of law in connection with
decisions provided for herein.Nothing in this contract,however, shall be construed as making final the decision of
any administrative official,representative,or board on a question of law.
Section 19.Does not supersede other agreements
This contract is not intended to supersede or affect in any way any other agreement(if any)that is currently in effect
between the State and the Local Agency for other`maintenance services"on State Highway rights-of-way within the
jurisdiction of the Local Agency. Also,the Local Agency shall also continue to perform,at its own expense,all such
activities/duties(ifany)on such State Highway rights-of-ways that the Local Agency is required by applicable law to
perform.
Section 20.SubLocal Agencys
The Local Agency may subcontract for any part of the performance required under this contract,subject to the Local
Agency first obtaining approval from the State for any particular subLocal Agency. The State understands that the
Local Agency may intend to perform some or all of the services required under this contract through a subl-ocal
Agency. The Local Agency agrees not to assign rights or delegate duties under this contract[or subcontract any part
of the performance required under the contract]without the express,written consent of the State,which shall not be
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unreasonably withheld.Exceptas hercinotherwise provided,this agreement shall inure to the benefit ofand be binding
only upon the parties hereto and their respective successors and assigns.
Section 21.Statewide Contract Management System
If the maximum amount payable to Local Agency tinder this contract is S 100,000 or greater,either on the Effective
Date or at any time thereafter,this§21.Statewide Contract Management System applies.
Local Agency agrees to be governed,and to abide, by the provisions of CRS §24-102-205,§24-102-206,§24-103-
601,§24-103.5-101 and§24-105-102 concerning the monitoring of Local Agency performance on state contracts
and inclusion of contract performance information in a Statewide contract management system.
Local Agency's performance shall be subject to evaluation and review in accordance with the terms and conditions of
this contract,State law, including CRS §24-103.5-101,and State fiscal rules,policies and guidance. Evaluation and
review of the Local Agency's performance shall be part of the normal contract administration process and Local
Agency's performance will be systematically recorded in the statewide contract management system. Areas of
evaluation and review shall include,but shall not be limited to,quality,cost and timeliness.Collection of information
relevant to the performance of Local Agency's obligations under this contract shall be determined by the specific
requirements of such obligations and shall include factors tailored to match the requirements of Local Agency's
obligations. Such performance information shall be entered into the Statewide contract management system at
intervals established herein and a final evaluation,review and rating shall be rendered within 30 days of the end of the
contract term.Local Agency shall be notified follovvingeach performance evaluation and review,and shall address or
correctany identified problem in a timelymanner and maintain work progress.
Should the final performance evaluation and review determine that Local Agency demonstrated a gross failure to meet
the performance measures established hereunder,the Executive Director of the Colorado Department of Personnel
and Administration(Executive Director),upon request by the Department of Transportation, and showing of good
cause, may debar Local Agency and prohibit Local Agency from bidding on future contracts.Local Agency may
contest the final evaluation,review and rating by:(a)filing rebuttal statements,which may result in either removal or
correction of the evaluation (CRS §24-105-102(6)),or(b) under CRS §24-105-102(6),exercising the debarment
protest and appeal rights provided in CRS §§24-109-106, 107,201 or 202,which may result in the reversal of the
debarment and reinstatement of Local Agency,by the Executive Director,upon showing ofgood cause.
Section 22.COLORADO SPECIAL PROVISIONS(COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in ita/icv.
A. STATUTORY APPROVAL. §24-30-202(1),C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this
Contract is for a Major Information Technology Project,as defined in§24-37.5-102(2.6),then this Contract shall
not be valid until it has been approved by the State's Chief Information Officer or designee.
B. FUND AVAILABILITY. §24-30-202(5.5),C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that
purpose being appropriated,budgeted,and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State, its departments,
boards,commissions committees,bureaus,offices,employees and officials shall be controlled and limited by the
provisions of the Colorado Governmental Immunity Act, §24-10-101,et seq.,C.R.S.; the Federal Tort Claims
Act, 28 U.S.C. Pt.VI, Ch. 171 and 28 U.S.C. 1346(b),and the States risk management statutes,§§24-30-1501,
ct scq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or
implied,of any of the immunities,rights,benefits,protections,or otherprovisions,contained in these statutes.
D. INDEPENDENT CONTRACTOR
Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither
Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State.
Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or
understanding, except as expressly set forth herein. Contractorand its employees and agents are not entitled
to unemployment insurance or workers compensation benefits through the State and the State shall not
pay for or otherwise provide such coverage for Contractor or any of its agents or employees.Contractor
shall pay when due all applicable employment taxes and income taxes and local head taxes incurred
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pursuant to this Contract.Contractor shall (i)provide and keep in force workers'compensation and
unemployment compensation insurance in the amounts required by law,(ii)provide proof thereorwhen
requested by the State,and (ill)be solely responsible for its acts and those ofits employees and agents.
E. COMPLIANCE WITH LAW.
Contractor shal I comply with all applicable federal and State laws, rules,and regulations in effect or hercafler
established,including,without limitation,laws applicable to discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto,shall be applied in the interpretation,execution,
and enforcement of this Contract.Any provision included or incorporated herein by reference which conflicts
with said laws, rules,and regulations shall be null and void. All suits or actions related to this Contract shall be
filedand proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS.
Any term included in this Contract that requires the State to indemnify or hold Contractor harmless;requires the
State to agree to binding arbitration;limits Contractor's liability for damages resulting from death,bodily injury,
or damage to tangible property;or that conflicts with this provision in any way shall be void ab initio. Nothing
in this Contract shall be construed as a waiver of any provision of§24-106-109 C.R.S. Any terni included in this
Contract that limits Contractor's liability that is not void under this section shall apply only in excess of any
insurance to be maintained under this Contract,and no insurance policy shall be interpreted as being subject to
any limitations of liability of this Contract.
1-1. SOFTWARE PIRACY PROHIBITION.
State or other public funds payable tender this Contract shall not be used for the acquisition, operation,or
maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions.
Contractor hercbycertiftcs and warrants that,during the term of this Contract and any extensions,Contractor has
and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the
State determines that Contractor is in violation of this provision,the State may exercise any remedy available at
law or in equity or under this Contract,including,without limitation,immediate termination of this Contract and
any remedy consistent with federal copyright laws or applicable licensing restrictions.
i. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507,C.R.S.
The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest
whatsoever in the service orproperty described in this Contract.Contractor has no interest and shall not acquire
any interest,direct or indirect,that would conflict in any manner or degree with the performance of Contractor's
services and Contractor shall not employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1)and 24-30-202.4,C.R.S.
[Not applicable to intergoieriunental agreements]Subject to §24-30-202.4(3.5),C.R.S., the State Controller
may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for:(i)
unpaid child support debts or child support arrearages; (if)unpaid balances of trot, accrued interest,or other
charges specified in §§39-21-101,etseq., C.R.S.; (III) unpaid loans due to the Student Loan Division of the
Department of Higher Education; (iv)amounts required to be paid to the Unemployment Compensation Fund;
and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The
State may also recover,at the State's discretion,payments made to Contractor in error forany reason,including,
but not limited to,overpayments or improper payments,and unexpended or excess funds received by Contractor
by deduction from subsequent payments under this Contract,deduction from any payment due under any other
contracts, grants or agreements between the State and Contractor,or by any other appropriate method for
collecting debts owed to the State.
K. PUBLIC CONTRACTS FUR SERVICES. §§8-17.5-101,et seq.,C.R.S.
i Not applicable to agreements relating to the offer,issuance,or sale ofsecurities,investment advisorysernires
or fund managementservices,sponsoredprojects,intergovernmental agreements,or information technolop,
services orproducts and services)Contractor certifies,warrants,and agrees that it does not knowingly employ
or contract with an illegal alien who will perform work under this Contract and will confirm the employment
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eligibility of all employees who arc newly hired for employment in the United States to perform work under this
Contract,through participation in the E-Verify Program or the State verification program established pursuant to
§8-17.5-102(5)(c),C.R.S., Contractor shall not knowingly employ or contract with an illegal alien to perform
Nvork under this Contract or enter into a contract with a Subcontractor that fails to certifyto Contractor that the
Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract.
Contractor(I)shall not use E-Vcrify Program or the program procedures of the Colorado Department of Labor
and Employment("Department Program") to undertake prc-employment screcningof job applicants while this
Contract is being performed,(ii)shall notify the Subcontractor and the contracting State agency or institution of
higher education within 3 days if Contractor has actual knowledge that a Subcontractor is employing or
contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a
Subcontractor does not stop cntployingorcontractingwith the illegal alien within 3 days of receiving the notice,
and(iv)shall comply with reasonable requests made in the course of an investigation,undertaken pursuant to§8-
17.5-102(5),C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in the
Department program,Contractor shall deliver to the contracting State agency, Institution of Higher Education or
political subdivision, a written,notarized affirmation,affirming that Contractor has examined the legal work
status of such employee,and shall comply with all of the other requirements of the Department program. If
Contractor fails to complywith any requi rement ofthis provision or§§8-17.5-101,et seq.,C.R.S.,the contracting
State agency,institution of higher education or political subdivision may terminate this Contract for breach and,
if so terminated,Contractor shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS.§§24-76.5-101,el seq.,C.R.S.
Contractor,if a natural person eighteen(18)years of age or older,hereby swears and affirms under penalty of
perjury that Contractor(i)is a citizen or otherwise lawfully present in the United States pursuant to federal law,
(H)shall comply with the provisions of§§24-76.5-101,et seq., C.R.S., and (iii)has produced one form of
identification required by§24-76.5-103,C.R.S.prior to the Effective Date of this Contract.
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