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HomeMy WebLinkAboutresolution.council.067-22RESOLUTION NO.67 (Series of 2022) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND INTERIM PUBLIC MANAGEMENT, LLC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for professional services support for professional management -level services, between the City of Aspen and Interim Public Management, LLC, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for professional management -level services between the City of Aspen and Interim Public Management, LLC, a copy of which is annexed hereto and incorporated herein and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 10' day of May 2022. 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, May 10, 2022. Il Nicole Henning, Cit ' Clerk DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABC1C Exhibit A PROFESSIONAL SERVICES AGREEMENT 2022-216 THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is entered into between the City of Aspen, a municipal corporation of the State of Colorado ("Client') acting through its City Manager (the "Manager"), and Interim Public Management, LLC, an Arizona limited liability company ("IPM"). RECITALS WHEREAS, the Code and Ordinances of Client, Client policies and/or Clients Council empower the Manager to enter into contracts on behalf of Client for professional services; and WHEREAS, Client is in need of professional management -level services, at this time and possibly in the future; and WHEREAS, Client desires to enter into this Agreement for IPM to provide professional services to Client upon the terms and conditions set forth herein and to agree to terms and conditions that will govern other such related services as may be requested by the Manager from time to time (the "Services"); and herein; WHEREAS, IPM desires to provide the Services upon the terms and conditions set forth AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Details of Services. For each engagement hereunder, a description of the Services to be provided, the expected start date, fees and expenses, and other details regarding the Services shall be set forth in a Schedule to this Agreement signed by the Manager and IPM. The Client hereby represents that the City Council has fully authorized and empowered the City Manager to enter into services agreements, including Schedules to this Agreement, as long as expenditures for Services described in the Schedules do not exceed Council -adopted budgeted amounts for that department, without further City Council approval. The individuals to be provided by IPM to perform the Services shall be referred to herein each as "Consultant' and collectively the "Consultants." In addition, the Consultants, other IPM representatives and the Chief Executive Officer of IPM (the "CEO") will be reasonably available by telephone and email to Client for additional workdays and/or hours, subject to appropriate additional charges based on the fee structure set forth in the applicable Schedule, if such additional work and charges have been preapproved in writing (email acceptable) by the Manager. Page 1 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABCI C 2. Selection of Consultants. IPM and Client will agree from time to time to certain Consultant(s) to provide Services to Client, and each such engagement will become effective upon the Effective Date of the applicable Schedule to this Agreement. IPM and Client agree each such Consultant has been selected to perform the Services after mutual consultation and is a suitable individual with sufficient education and prior experience to provide the designated Services to Client. IPM may replace a Consultant if such Consultant becomes unavailable to IPM for any reason. In each such event, IPM will endeavor to provide a reasonably sufficient replacement Consultant within two (2) weeks, and this Agreement and the applicable Schedule shall then apply with respect to that replacement Consultant. IPM may use secondary vendors to fulfill any or all of its obligations hereunder without securing Client's consent. 3. Term. This Agreement shall commence upon its execution by both parties hereto (the "Effective Date") and shall continue until terminated by either party, with or without cause, by providing the other party 30 days' prior written notice of termination. Each Schedule shall set forth the terms under which it may be terminated. Any termination of this Agreement shall not automatically terminate any then -effective Schedule(s), each of which must be terminated pursuant to its specific terms and conditions. 4. Fees, Invoicing and Payment 4.1. In consideration of the Services to be rendered by IPM, Client shall pay to IPM all fees and expenses arising hereunder and arising pursuant to the terms of each active Schedule. 4.2. In addition, if at any time during the term of this Agreement or the applicable Schedule or within one (1) year thereafter Client hires, contracts with or engages in any way, directly or indirectly, any Consultant that has been provided by IPM to provide Services to Client under this Agreement or any Schedule hereto to perform any services for or for the benefit of Client'(other than through IPM), Client hereby agrees to pay IPM an Engagement Fee equal to 20.8% of the annualized salary, fees or other compensation to be paid to or for the benefit of such Consultant, payable to IPM at the time of such engagement of the Consultant's services. 4.3. Client agrees to timely review and approve reports of time worked by IPM employees, if submitted to Client. If Client is unavailable to approve, IPM may approve such reports on Client's behalf. Reports of time worked approved as set forth herein will be conclusive as to the Services provided by each IPM Consultant assigned to Client. 4.4. IPM will invoice Client semi-monthly for all amounts arising hereunder, which invoices are payable by Client on net 10-day payment terms. Late payments will be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permilled by law, whichever is less. In addition to charging interest, IPM reserves the right to suspend performance of the Services while any amount due hereunder is past due and remains unpaid. Page 2 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-BBD4-CF658AFABCIC 5. Independent Contractor Status; Obligations and Duties of Parties. With respect to the services provided by IPM hereunder, IPM shall be an independent contractor, and no Consultant shall be construed in any way to be an employee of Client. 5.1. As the employer, IPM will maintain all necessary personnel and payroll records for its employees; calculate their wages and withhold taxes; remit such taxes to the appropriate governmental entity; pay net wages and benefits, if any, to its employees; and provide workers' compensation insurance coverage as required by law. 5.2. IPM shall be responsible for providing proper compensation to the Consultants and all other IPM representatives per IPM's agreed terms therewith, and no employee or contractor of IPM shall be entitled to or have any right to demand salary, wages, benefits, employment or income taxes, reimbursements, workers compensation coverage, retirement, insurance or any other benefit, compensation or remuneration directly from Client, whether or not Client affords any such payment or benefit to its employees. Notwithstanding the foregoing, if applicable Client shall be responsible to pay any pension contributions if required by state law that arise as a result of the Services provided hereunder; Client agrees that it shall otherwise pay no wages, salary or other forms of direct or indirect compensation, including employee benefits, to any Consultant. 5.3. IPM shall have the sole authority to assign and/or remove the Consultants. Notwithstanding the foregoing, Client may request in writing that IPM remove or reassign a Consultant, and IPM shall not unreasonably withhold its approval of any such request. 5.4. Client shall provide IPM's employees with a suitable workplace, if and as applicable, that complies with all applicable safety and health requirements; and adequate instructions, assistance, supervision and time to perform the Services. Where an IPM employee is given access to any of Client's computer equipment or systems, Client is responsible for maintaining a current backup copy of any data associated with those systems and appropriate written internal control procedures relating thereto. Client agrees to give IPM immediate written notice of any concern or complaint regarding a Contractor's performance or conduct. Client agrees that it shall report all on-the-job illnesses, accidents and injuries of any Contractor to IPM immediately upon Client's receipt of notice or knowledge of same. 6. Compliance with Law. IPM agrees to comply, and to ensure that the Consultants and all other IPM representatives comply, with the provisions of Federal law, State statutes, Client's Code and any and all other applicable laws. Client agrees to comply with its obligations under all applicable laws, regulations and orders, including but not limited to laws relating to workplace safety and employment discrimination. Client represents that its actions under this Agreement do not violate its obligations under any agreement it has with any labor union. 7. Indemnification IPM agrees to indemnify, defend and hold harmless Client, to the extent of the insurance limits Page 3 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABC1C set forth in Section 10, from and against all claims, liabilities, damages, attorneys' fees, costs and expenses ("Losses") arising out of IPM's breach of its obligations under this Agreement or any direct claim for workers' compensation benefits for job -related bodily injury or death asserted against Client by any IPM employees or, in the event of death, by their personal representatives. IPM's obligation to indemnify, defend and hold harmless will not apply to: the extent Losses are due to Client's failure to fulfill its duties under this Agreement or any applicable law; the extent any Losses, except for the payment of workers' compensation benefits, are the result of any negligent act or omission or intentional misconduct of Client, its employees or agents; In the event Client seeks indemnity from IPM pursuant to this Section 7, Client shall give IPM prompt notice of any such claim, allow IPM to control the defense and settlement thereof, and cooperate with IPM relating thereto. 7.1. The provisions of this Section 7 shall survive the termination of this Agreement and the expiration or termination of any Schedule hereto. 8. Bonding. Client shall provide all required bonding, if any, relating to the performance of Services as set forth herein. 9. Performance Warranty. IPM warrants that the Services rendered by the Consultants will conform to the requirements of this Agreement and to the prevailing professional standards for comparable services in the Denver metropolitan area. In the event of breach of the foregoing warranty, IPM will re -perform the deficient Services and correct the breach at no additional cost. Except for the warranties described herein, IPM disclaims all other warranties concerning the Services, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose and any warranty that might otherwise arise pursuant to applicable law. Client's remedies and IPNTs liability under this Agreement are limited to the remedies and liabilities set forth in this Section 9. 10. Insurance 10.1. IPM agrees to procure and maintain in force during the term of this Agreement, at its own cost, the following coverages or sufficient evidence of qualified self - insured status of same: 10.1.1. Commercial General or Business Liability Insurance with minimum combined single limits of one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) general aggregate; and 10.1.2. Professional Liability coverage with minimum limits of one million dollars ($1,000,000) each claim and one million dollars ($1,000,000) general aggregate. 10.2. All coverages shall be continuously maintained to cover all liability, claims, demands and other obligations assumed by IPM pursuant this Agreement. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be Page 4 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABCIC procured to maintain such continuous coverage. Client reserves the right to continue payment of the premium for which reimbursement will be deducted from amounts due or subsequently due IPM. 10.3. A Certificate of Insurance shall be completed by IPM's insurance agent(s) as evidence that policies providing the required coverages, conditions and minimum limits are in full force and effect. The Certificate shall identify this Agreement and shall provide that the coverages afforded under the policies shall not be canceled, terminated or limits reduced until at least 30 days prior written notice has been given to Client. The Certificate of Insurance will name Client as an additional insured, except for workers compensation and professional liability insurance. The Certificate of Insurance shall be sent or emailed to the Manager. 11. Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Colorado and suit pertaining to this Agreement may be brought only in courts in the County in the State of Colorado in which Client is located. 12. Miscellaneous 12.1. Amendments. Except as may be otherwise stated herein, this Agreement or any Schedule hereto may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of Client and IPM. 12.2. Severabilitv. The provisions of this Agreement are severable to the extent that any provision or application held to be invalid by a court of competent jurisdiction shall not affect any other provision or application of the Agreement which may remain in effect without the invalid provision or application. 12.3. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors, representatives and assigns. 12.4. Entire Agreement; Interpretation; Parol Evidence. This Agreement and the Schedules hereto collectively represent the entire agreement of the parties with respect to its subject matter, and all previous agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and superseded thereby. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in any other contemporaneous written agreement executed for the purposes of carrying out the provisions of this Agreement. This Agreement shall be construed and interpreted according to its plain meaning, and no presumption shall be deemed to apply in favor of, or against the party drafting the Agreement. The parties acknowledge and agree that each has had the opportunity to seek and utilize legal counsel in the drafting of, review of, and entry into this Agreement. 12.5. Waiver. The failure by one party hereto to require performance by the other party shall not be deemed to constitute a waiver of any such breach, nor of any subsequent Page 5 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABCIC breach by the other party of any provision of this Agreement, and shall not affect the validity of this Agreement, nor prejudice either party's rights in connection with any subsequent action. This Agreement or any provision hereof may be waived by a party hereto only via a writing signed by such party. 12.6. Force Majeure. IPM will not be responsible for failure or delay in assigning its employees to Client if the failure or delay is due to labor disputes and strikes, fire, riot, war, acts of nature or of God, or any other causes beyond the control of IPM. 12.7. Dispute Resolution. The parties agree in good faith to attempt to resolve amicably, without litigation, any dispute arising out of or relating to this Agreement or any Schedule hereto. In the event that any dispute cannot be resolved through direct discussions, the parties agree to endeavor to settle the dispute by mediation. Either party may make a written demand for mediation, upon which demand the matter shall be submitted to a mediation firm mutually selected by the parties. The mediator shall hear the matter and provide an informal opinion and advice within twenty (20) days following written demand for mediation. Said informal opinion and advice shall not be binding on the parties, but shall be intended to help resolve the dispute. The mediator's fee shall be shared equally by the parties. Each party shall pay its own attorneys' fees and costs. If the dispute has not been resolved, the matter may then be submitted by either party to the judicial system. 12.8. Attorneys' Fees and Costs. Should any legal action, including mediation or other alternative dispute resolution methods, be necessary to enforce any term of provision of this Agreement or to collect any portion of the amount payable hereunder, then all reasonably incurred expenses of such legal action or collection, including witness fees, costs of the proceedings and attorneys' fees, shall be awarded to the substantially prevailing party. 12.9. Notices and Requests. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered to the party at the address set forth below, (b) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, or (c) given to a recognized and reputable overnight delivery service, to the address set forth below: If to Client: Sara Ott, City Manager City of Aspen 427 Rio Grande Place Aspen, CO 81611 Email: sara.ott@cityofaspen.com If to IPM: Interim Public Management, LLC PO Box 1123 Pinedale AZ 85934-1123 Attn: Timothy G. Pickering, CEO Email: tim@interimpubliemana=ment.com Page 6 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABC1C or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed received the earlier of (a) when delivered to the party, (b) three business days after being placed in the U.S. Mail, properly addressed, with sufficient postage, or (c) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. 12.10. Confidentiality of Records. IPM shall establish and maintain commercially reasonable procedures and controls for the purpose of ensuring information contained in its records or obtained from Client or from others in carrying out its obligations under this Agreement shall not be used or disclosed by it, its agents, officers, or employees, except as required to perform IPM's duties under this Agreement or for the management of IPM's business. Persons requesting such information should be referred to Client. 12.11. Americans With Disabilities Act. This agreement is subject to all applicable provisions of the Americans with Disabilities Act (Public Law 101-336, 42 U.S.C. 12101-12213) and all applicable federal regulations under the Act, including 28 CFF Parts 35 and 36. (Non - Discrimination: IPM shall comply with Executive Order 2009-09, which mandates that all persons, regardless of race, color, religion, sex, age, national origin or political affiliation shall have equal access to employment opportunities, and all other applicable state and federal employment laws, rules and regulations, including the Americans With Disabilities Act. IPM shall take affirmative action to ensure that applicants for employment and employees are not discriminated against due to race, creed, color, religion, sex, age, national origin or political affiliation or disability.) 12.12. Compliance With Federal and State Laws. IPM understands and acknowledges the applicability to it of the Americans with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989. 12.12.1.Under the provisions of C.R.S. § 8.17.5-1.1 & 102, IPM hereby warrants to Client that IPM and each of its subcontractors will comply with, and are contractually obligated to comply with, all Federal Immigration laws and regulations that relate to their employees (hereinafter "Contractor Immigration Warranty"). 12.12.2.IPM shall neither knowingly employ or contract with an illegal alien to perform work under this Agreement, nor enter into a contract with a subcontractor that fails to certify to IPM that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Page 7 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABCIC 12.12.3.IPM shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement, through participation in either the e-verify program or the State of Colorado's department program. 12.12.4.IPM shall use either the e-verify program or the State of Colorado's department program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. 12.12.5.If IPM obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, IPM shall (A) notify the subcontractor and the Client within three days that EPM has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (B) terminate the subcontract with the subcontractor if, within three days of receiving the notice required pursuant to clause (A) above, the subcontractor does not stop employing or contracting with the illegal alien; except that IPM shall not terminate the contract 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. 12.12.6.IPM shall comply with any reasonable request by the deparhnenl made in the course of an investigation that the Colorado Department of Labor and Employment is undertaking pursuant to the authority established in subsection (5) of C.R.S. § 8-17.5-102. 12.13. No Kick -back Certification. No person has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee; and that member of Client's Council or any employee of Client has no interest, financially or otherwise, in IPM's firm. 12.14. Conflict of Interest. From the date of this Agreement through the termination of its service to Client, IPM shall not accept, negotiate or enter into any contract or agreements for services with any other party that may create a substantial interest, or the appearance of a substantial interest in conflict with the timely performance of the work or ultimate outcome of this Agreement and/or adversely impact the quality of the work under this Agreement without the express approval of the Manager. Whether such approval is granted shall be in the sole discretion of the Manager. The parties hereto acknowledge that this Agreement is subject to cancellation pursuant to the provisions of C.R.S. § 24-18-203. 12.15. Constitutionals . The parties hereto do not intend this Agreement to be a multiple fiscal year financial obligation within the meaning of Article X, Section 20 of the Colorado Constitution, and this Agreement shall be interpreted so to avoid any such meaning. The parties therefore agree that all obligations of the client to make payment under this Agreement are subject to annual appropriations by the governing body. If any provision or portion of this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement shall be deemed severable and shall remain in full force and effect. Page 8 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-BBD4-CF658AFABCIC IN WITNESS WHEREOF the parties have executed this Agreement, effective on the Effective Date described above. Client: City of Aspen DvcuSignod by: Via LA, FD"sistant city Manager 5/11/2022 1 1:32:40 PM MDT By: Sara Ott, City Manager Date Agreed to and accepted by Interim Public Management, LLC: Doca igned by: 4/29/2022 1 12:36:44 PM MST By: Tim Pickering, CEO Date Page 9 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABC1C SCHEDULE A TO PROFESSIONAL SERVICES AGREEMENT Effective Date of Schedule: May 10, 2022 Client: Aspen, Colorado Services: Interim IT Director Expected Commencement Date for En a ement: Monday, May 16, 2022 Expected Services Performance: Five days per week, typically Monday through Friday, on and off -site Fees: Client shall pay to IPM the Fees set forth below, in consideration of the Services rendered by IPM hereunder: The Client shall pay IPM the following fee for each for each week Services Fees: during which the Consultant or other IPM representatives provide Services to the Client: $4,737 per week, per Consultant or other IPM resource. Client shall reimburse IPM for the following expenses: actual cost Expense Fees: for business -related mileage at IRS standard rates, airfare, rental car and parking, reasonably related to the performance of the Service and pay an administrative charge of 15% on all reimbursed expenses. Furnished lodging to be provided by Client. The Services and Expense Fees set forth above shall increase by five percent on January 1, 2023 and annually thereafter. Services and Expense Fees may be prorated by IPM as appropriate. If Client expressly approves or requests that a Contractor work overtime hours, and if IPM is required to pay such Consultant overtime rates for such work, Client hereby agrees that its rates for such Consultant with respect to such overtime hours shall be 1.5 times the Services Fees rates set forth above. Term: This Schedule shall commence upon its stated Commencement Date and shall continue until September 16th, 2022 and shall continue month to month after said date. Client may elect to terminate the Schedule effective September 16th, 2022 by providing IPM at least 15 days' prior written notice. Before September 16th, 2022 this Schedule may be terminated either (a) by either party without cause by providing the other party 15 days' prior written notice of termination; or (b) by either party with cause by providing the other party at least fifteen (15) days' prior written notice of termination for cause, provided that if the party giving such notice agrees that such cause has been cured during the first seven (7) days of such notice period then such notice of termination shall have no force or effect. Should the Client terminate the agreement before September 16th, 2022, Client shall pay to IPM as a termination fee and not as a penalty fifty percent (50%) of the Services Fee set forth above for each week remaining between the date of Client's early termination and September 16th, 2022. Page 10 of 11 DocuSign Envelope ID: 129DBCE3-40E8-4D75-B8D4-CF658AFABCIC IN WITNESS WHEREOF the parties have executed this Schedule, effective on the Effective Date described above. Client: City of Aspen —Docuftnod by:: VIA.IAA, r"bSL'" Assistant city Manager 5/11/2022 1 1:32:40 PM MDT By: Sara Ott, City Manager Date Agreed to and accepted by Interim Public Management, LLC: F�' ocuftned by: � 4/29/2022 1 12:36:44 PM MST By: Tim Pickering, CEO Date Page 11 of 11