HomeMy WebLinkAboutresolution.council.045-23RESOLUTION #045
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND PARKER, SMITII AND FEEK AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHERAS, the City of Aspen has the need for market competitive employee
benefits;
WHERAS, for employee benefits to remain successful and attractive in
recruitment and retention, consulting strategy is required;
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen and Parker, Smith and Feek, 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 services between the City of Aspen and Parker, Smith and Feek, 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 28' day of March 2023.
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, L 2021.
Nicole Henning, City lerk
1
FEE AGREEMENT
For Standard Services
Prepared For City of Aspen
This Fee Agreement (this “Agreement”) is made on this 15th day of March, 2023, by and
between Parker, Smith & Feek Insurance, LLC, a Kansas LLC (“PS&F”), and City of Aspen (City
of Aspen).
City of Aspen wishes to enter into an employee benefits relationship with PS&F with the terms
and conditions set forth in this Agreement, and PS&F is willing to accept such a relationship.
In consideration of the fee compensation outlined in Exhibit 2, and the terms and conditions
contained in this Agreement, City of Aspen and PS&F agree as follows:
1. Engagement
City of Aspen engages PS&F as its employee benefits representative as stated in this
Agreement and PS&F accepts this engagement. During the time that PS&F is
performing services for City of Aspen under this Agreement, and for all purposes
outlined in this document, PS&F’s status will be that of an independent contractor of
City of Aspen.
2. Term and Termination
The Effective Date of this Agreement is April 1st, 2023; the term of PS&F’s engagement
under this Agreement (the “Engagement Period”) will begin as of the Effective Date
and will remain in effect until a mutually agreed update by both parties. Either party
may terminate this Agreement by giving the other party at least thirty (30) days
written notice of its intent to terminate.
3. Scope of Services
PS&F will provide standard employee benefits services to City of Aspen and consult
with its employees, representatives, agents and contractors as to such matters as
more fully described in Exhibit 1 attached to this Agreement and incorporated herein.
These services are being provided for a fee in lieu of commission, as specified in Exhibit
2. PS&F will perform other services as mutually agreed to in writing by City of Aspen
and PS&F.
PS&F warrants that they will provide adequate staffing with individuals who are qualified
to perform the scope of services outlined in Exhibit 1. Changes to Client team will not be
made without mutual agreement between Client and PS&F.
4. Performance and Scope
(a) PS&F Not a Fiduciary under ERISA. To the extent that any of City of Aspen’s
employee benefit plans are subject to the Employee Retirement Income
Security Act, (ERISA), as amended and in spite of any other provision of this
Agreement to the contrary, the parties agree and acknowledge that:
(i) PS&F’s services under this Agreement are not intended in any way to
impose on PS&F or any of its affiliates a fiduciary status under the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) ; and
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FEE AGREEMENT
For Standard Services
(ii) this Agreement does not provide PS&F, and City of Aspen will not cause
or permit PS&F to assume, without prior written consent of PS&F, any:
(A) discretionary authority or discretionary control respecting
management of any “employee benefit plan” within the meaning
of Section 3(3) of ERISA (an “ERISA Plan”),
(B) authority or control respecting management or disposition of the
assets of any ERISA Plan, or
(C) discretionary authority or discretionary responsibility in the
administration of any ERISA Plan.
(b) Reliance. In the performance of its duties, PS&F may rely upon, and will have
no obligation to independently verify the accuracy, completeness, or
authenticity of, any written instructions or information provided to PS&F by City
of Aspen or its designated representatives and reasonably believed by PS&F to
be genuine and authorized by City of Aspen.
(c) No Practice of Law. PS&F will not be obligated to perform, and City of Aspen
will not request performance of, any services which may constitute
unauthorized practice of law. City of Aspen will be solely responsible for
obtaining any legal advice, review or opinion as may be necessary to ensure
that its own conduct and operations, including the engagement of PS&F under
the scope and terms as provided herein, conform in all respects with applicable
State and Federal laws and regulations (including ERISA, the Internal Revenue
Code, State and securities laws and implementing regulations) and, to the
extent that City of Aspen has foreign operations, any applicable foreign laws
and regulations.
(d) Subcontractors. PS&F may cause another person or entity, as a subcontractor
of PS&F, to provide some or all of the services required to be performed by
PS&F hereunder. If subcontractors are used, PS&F will disclose to City of Aspen,
in writing the nature of PS&F’s relationship with the subcontractor.
(e) Conflict of Interest. PS&F’s engagement under this Agreement will not prevent
it from taking similar engagements with others who may be competitors of City
of Aspen. PS&F will, nevertheless, exercise care and diligence to prevent any
actions or conditions which could result in a conflict with City of Aspen’s best
interest.
(f) Acknowledgements. In connection with PS&F’s services under this Agreement,
City of Aspen agrees that:
(i) Although PS&F will apply its professional judgment to access those
insurance companies it believes are best suited to insure City of Aspen’s
risks, there can be no assurance that the insurance companies PS&F has
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FEE AGREEMENT
For Standard Services
accessed are the only or are the best suited ones to insu re City of
Aspen’s risks.
(ii) The final decision to choose any insurance company has been made by
City of Aspen in its sole and absolute discretion. City of Aspen
understands and agrees that PS&F does not take risk, and that PS&F
does not guarantee the financial solvency or security of any insurance
company.
(iii) The compensation payable to PS&F is solely for the services set forth
under this Agreement, including Exhibit 1.
(iv) City of Aspen is responsible for immediate payment of PS&F’s fees and
payment of premiums for all insurance placed by PS&F on City of Aspen’s
behalf. If any amount is not paid in full when due, including premium
payments to insurance companies, that nonpayment will constitute a
material breach of this Agreement that will allow PS&F to immediately
terminate this Agreement, at its option, without notice to City of Aspen,
and may allow an insurance company for City of Aspen’s risks to cancel
any applicable policies in accordance with the terms of such policies.
5. Confidentiality
(a) City of Aspen Information. PS&F recognizes that certain confidential information
may be furnished by City of Aspen to PS&F in connection with its services
pursuant to this Agreement (“Confidential Information”). PS&F agrees that it
will disclose Confidential Information only to those who, in PS&F’s reasonable
determination, have a need to know such information. Confidential Information
will not include information that (i) is or becomes publicly available other than
as a result of a breach of this Agreement by PS&F, or (ii) is or can be
independently acquired or developed by PS&F without violating any of its
obligations under this Agreement. However, disclosure by PS&F of any
Confidential Information pursuant to the terms of a valid and effective
subpoena or order issued by a court of competent jurisdiction, judicial or
administrative agency or by a legislative body or committee will not constitute
a violation of this Agreement.
(b) HIPAA Privacy. In spite of Sections 5(a) above, PS&F and City of Aspen will
each comply with any prohibitions, restrictions, limitations, conditions, or other
requirements to the extent they apply to them directly or indirectly pursuant to
the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and
its implementing regulation concerning privacy of individually identifiable health
information as set forth in 45 CFR Parts 160-164, as amended from time to
time. As required under HIPAA, Client and PS&F will enter into a separate
Business Associate Agreement.
(c) Use of Names; Public Announcements. No party will use, in any commercial
manner, the names, logos, trademarks or other intellectual property of the
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FEE AGREEMENT
For Standard Services
other party without its prior written consent. Except as may be required by law,
no party will issue any press releases or make any public announcements of
any kind regarding the relationship between the parties without the other
party’s prior consent.
6. Indemnification
(a) PS&F agrees to indemnify, defend, protect, save, and hold harmless City of
Aspen from any and all loss, cost, damage, or exposure arising from the
negligent acts or omissions of PS&F.
7. Notices
Any notices, requests and other communications pursuant to this Agreement will be in
writing and will be deemed to have been duly given, if delivered in person or by courier,
telegraphed, by facsimile transmission or by electronic transmission (e-mail) (provided
that the sender received electronic confirmation of receipt by recipient) or sent by
express, registered or certified mail, postage prepaid, FEDEX, or UPS addressed as
follows:
If to City of Aspen: City of Aspen
427 Rio Grande Place
Aspen, CO 81611
Phone: 970-920-5000
Courtney DeVito , Human Resources Director
courtney.devito@aspen.gov
If to PS&F: Parker, Smith & Feek Insurance, LLC
2233 112th Avenue NE
Bellevue, WA 98004
Phone: 425.709.3600
Executive: Jim Chesemore
Executive email: jrchesemore@psfinc.com
Either party may, by written notice to the other, change the address to which notices
to such party are to be delivered or mailed.
8. Miscellaneous
(a) Severability. The various provisions and sub-provisions of this Agreement are
severable and if any provision or sub-provision or part thereof is held to be
unenforceable by any court of competent jurisdiction, then such enforceab ility
will not affect the validity or enforceability of the remaining provisions or sub -
provisions or parts thereof in this Agreement.
(b) Entire Agreement; Amendment. This Agreement, including all exhibits hereto,
constitutes the entire agreement between the parties and supersedes all prior
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FEE AGREEMENT
For Standard Services
agreements and understandings, whether oral or written, between the parties
regarding the subject matter hereof. This Agreement may be modified or
amended only by a written instrument executed by both parties.
(c) Governing Law; Rule of Construction. This Agreement will be construed,
interpreted and enforced in accordance with the laws of the State of Colorado
without giving effect to the choice of law principles thereof or any canon,
custom or rule of law requiring construction against the drafter.
(d) Successors. This Agreement shall be binding upon and shall inure to the benefit
of all assigns, transferees and successors in the interest of the parties hereto.
(e) Counterparts. This Agreement may be executed by the parties in several
counterparts, each of which shall be deemed to be an original copy.
(f) Survival of Provisions. Sections 5 and 6 will survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Fee Agreement to be duly
executed on the date first written above.
City of Aspen
By:
Name: Courtney DeVito
Title: Human Resources Director
Date:
Parker, Smith & Feek Insurance,
LLC
By: Jim
Chesemore
Name: Jim Chesemore
Title: Senior Vice
President - Account
Executive
Date: 3/15/23
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FEE AGREEMENT
For Standard Services
Exhibit 1
Scope of Services
Strategy
Schedule annual benefits strategy session with associated benefit planning.
Review strategy on a regular basis, with updates to plan and performance measures.
Provide annual report of plan performance with benchmarks for use by PS&F and City of
Aspen in benefit planning, including financial s, benefit utilization, plan design,
competitive benchmarks, and educational opportunities.
Review City of Aspen’s business objectives and challenges to ensure benefit solutions
are in support of organizational goals.
Report of Plan Performance
Provide monthly reporting of plan performance designed to meet City of Aspen’s needs.
Analysis of plan utilization by benefit (medical, prescription, dental), compared with
budgets. Analysis of outliers, large individual claimants, administration and insurance
costs.
Prepare annual report including plan use, effect of benefit changes, adherence to
budget, opportunities for improvement, etc.
Analyze plan performance based on utilization benchmarks to identify and measure the
impact of benefit design changes or anticipated benefit design changes through Decision
Master Warehouse tool.
Renewal & Financial Management
Schedule pre-renewal meeting to discuss cost projections, plan performance, large
claimants, vendor performance, plan design, and employee satisfaction.
Procure renewals from vendors and negotiate terms on behalf of City of Aspen.
Present renewals to City of Aspen no later than 120 days prior to renewal date, or other
mutually agreed upon dates to meet City of Aspen’s needs. Review with City of Aspen
the requested terms of the renewals and how they do/do not meet City of Aspen’s
needs. Work with City of Aspen and vendor to come to mutual agreement on terms,
benefits and cost. Stop Loss renewal may be presented later based on the requirements
of the carrier, with timing to be agreed upon by City of Aspen and PS&F.
Communicate with vendor accepted terms and conditions of the renewal.
Financial Management Services
Projections of future costs and development of estimated annual claim funding levels.
Assistance in development of your benefit plan budget. Presentation of budget figures to
your executive group, as required.
Model the impact of benefit design change, vendor change, impact of provider networks.
Model employee contributions and work with you on strategy for employee cost sharing.
Develop payroll deductions based on strategy, and provide COBRA rates.
Annual development of incurred but not reported reserves including working with your
auditors and finance department to explain methodology.
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FEE AGREEMENT
For Standard Services
Communication and Employee Education
Prepare annual open enrollment materials including open enrollment newsletter, benefit
summary, payroll deductions and contact information.
Conduct open enrollment meetings with employees or other meetings as needed to
educate employees about significant benefit changes (in-person, via webinar or
conference call, if appropriate).
Prepare annual open enrollment materials for COBRA participants.
Work with City of Aspen to develop regular employee communication and educational
materials, including fliers, newsletters, payroll stuffers, posters, etc. in support of
employee benefit plans or health and wellness initiatives.
Assess best communication pathway – print, online, etc.
Develop, with City of Aspen, employee surveys to determine employee satisfaction and
current understanding of the benefit plans.
Prepare vendor contact cards for employees.
Plan Marketing
When new vendors are needed, either due to financial, customer service or other needs,
PS&F will:
Work with City of Aspen to clearly define marketing objectives.
Develop a detailed action timetable.
Identify all suitable vendor alternatives.
Leverage our vendor relationships to negotiate the right terms and the right price.
Create and present to City of Aspen a detailed report and comparative analysis of best
qualified options, based on objectives.
Identify the advantages and risks of alternatives.
Recommend vendors who provide the best solution to meet City of Aspen needs.
Implementation
Prepare necessary carrier documentation for either new vendors or renewals.
Work with vendor and City of Aspen on billing and eligibility.
Work with vendor and City of Aspen on payment options and assist in setting up
banking, if needed.
Develop implementation checklist and ensure all items are completed in a timely manner
Participate in the implementation process to ensure agreed upon terms and processes
are in City of Aspen’s best interest. Lend our expertise on implementation issues and
benefit considerations.
Administration
Review all contracts prior to City of Aspen’s review and signature.
Periodic review of administrative processes to ensure they meet City of Aspen’s needs.
Troubleshoot administrative issues on behalf of City of Aspen (billing, eligibility, ID
cards, etc.).
Provide online legislative guides for COBRA, HIPAA, FMLA, Section 125, multi-state
benefits and other Human Resources mandates.
Serve as advocate and employee resource for benefit questions and claim issues.
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FEE AGREEMENT
For Standard Services
Compliance and Market Updates
Serve as a resource for compliance needs.
Review current procedures to ensure plan is in compliance with relevant government
requirements as they relate to benefits or eligibility.
Provide timely updates on legislative changes that effect City of Aspen and/or your
employees.
Provide access to online resource library with information on benefits, Human Resources,
insurance and general health topics.
Give advice on compliance options and the effect the change will have on benefits or
eligibility.
Provide sample notices and forms, personalized to City of Aspen and ready for use or
distribution.
Provide regular updates of market trends in benefit design, funding, health management
tools.
Prepare signature ready electronic Form 5500, if applicable.
eResources
PS&F will make available to City of Aspen on-line tools that can enhance and ease their
benefit administration, compliance and administration.
My Wave: Provide access to this website that provides City of Aspen’s benefits team with
time-saving tools and resources to assist in benefit plan administration .
Decision Master Warehouse: Provide detailed DMW data for their use in benefit planning
or claim analysis. Most DMW work will be performed by PS&F based on our observations
and any desired drill down data as requested by City of Aspen. We can provide City of
Aspen with access to the data for additional reporting if desired.
HR Technology Advisors – Provide access to HR and benefit technology consultants who
will work with City of Aspen to develop a strategy, select a vendor and implement
solutions for using technology to streamline HR and benefit administration, including
full-service payroll and HRIS systems.
Health Management
Review the current health management programs (TPA offerings, EAP, disease
management, etc.) and available reports.
Work with City of Aspen to assess data to determine opportunities for health
improvement.
Report results of assessment and possible solutions, based on your culture, budget
and employee’s receptivity to change.
Work with HR to create a wellness committee, and work with committee to set
objectives, budgets and hire vendors, as needed.
Work to establish baseline with which to measure success, and assist in annual
review of program performance compared with success definition.
Perform employee interest survey and report findings.
Review biometric data on an aggregate basis for health status and trends.
Provide educational materials and monthly newsletters, upon request.
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FEE AGREEMENT
For Standard Services
Exhibit 2
Fee Compensation
Subject to any changes in services that may be mutually agreed to by both parties, Parker,
Smith & Feek Insurance, LLC, Inc. will receive an annual compensation fee of $82,000 for its
services under this agreement. The fee is valid for one year and will be adjusted at a rate of
2% annually thereafter, unless The City of Aspen requests additional services.
If a carrier will not net out a Commissions – Parker, Smith & Feek, LLC will offset the
commissions against the flat fee.
Our compensation includes travel expenses.
Our Fee or the commissions we are entitled to receive may be adjusted over time or revised
if you request a change in the coverages and/or services during the Term of this agreement.
Any change in coverages, services or compensation must be documented via written
agreement.
Parker, Smith & Feek prides itself on transparency. Under certain circumstances PS&F
might receive contingent payments from insurance carriers based on the performance of
their book of business. The carriers we propose to you are in no way a reflection of the
contingencies that we may or may not receive. We are happy to provide you with further
information.
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CITY OF ASPEN STANDARD FORM OF AGREEMENT CITY OFASPEI
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2023-160
AGREEMENT made this 15 day of March, in the year 2023.
BETWEEN the City:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
Parker, Smith & Feek Insurance, LLC
233 112th Avenue NE
lellevue, WA 98004
'hone: 425.709.3600
For the Following Project:
Health Insurance Broker Change
Contract Amount:
Total: $82,000
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: _March/April 2023
Resolution No.:
Exhibits appended and made a part of this Agreement:
Exhibit A: Fee Agreement
The City and Professional agree as set forth below.
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1. Scope of Work. Professional shall perform in a competent and professional manner the Scope
of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein.
2. Completion. Professional shall commence Work immediately upon receipt of a written Notice
to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
The parties anticipate that all Work pursuant to this Agreement shall be completed no later than
December 2023. 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. Pam. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall not
exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed
to by the parties the payments made to Professional shall not initially exceed the amount set forth
above. Professional shall submit, in timely fashion, invoices for work performed. The City shall
review such invoices and, if they are considered incorrect or untimely, the City shall review the matter
with Professional within ten days from receipt of the Professional's bill.
4. Non -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 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.
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
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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. Indernni#ication. 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 insurance, or by reason of its
failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City.
All coverages shall be continuously maintained to cover all liability, claims, demands, and
other obligations assumed by the Professional pursuant to Section 8 above. In the case of any
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claims -made policy, the necessary retroactive dates and extended reporting periods shall be
procured to maintain such continuous coverage.
(i) Worker's Compensation insurance to cover obligations imposed by applicable
laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of 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
Worker's 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 THREE
MILLION DOLLARS ($3,000,000.00) 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 include coverage
for explosion, collapse, and underground hazards. 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 TWO MILLION DOLLARS ($2,000,000)
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
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 certifi-
cate shall identify this contract and shall provide that the coverages afforded under the policies
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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. Ci '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 term. No term, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant,
or condition to be performed by Professional to which the same may apply and, until complete
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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. ExeCLItI011 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. Worker Without Autllorization l2rohibited — CRS '8- l 7.5-101 & y24-76.5- 101
Purpose. During the 2021 Colorado legislative session, the legislature passed House Bill 21-
1075 that amended current CRS §8-17.5-102 (1), (2)(a), (2)(b) introductory portion, and
(2)(b)(IIl) as it relates to the employment of and contracting with a "worker without
authorization" which is defined as an individual who is unable to provide evidence that the
individual is authorized by the federal government to work in the United States. As amended,
the current law prohibits all state agencies and political subdivisions, including the Owner, from
knowingly hiring a worker without authorization to perform work under a contract, or to
knowingly contract with a Professional who knowingly hires with a worker without authorization
to perform work under the contract. The law also requires 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.
Definitions. The following terms are defined by this reference are incorporated herein and in any
contract for services entered into with the Owner.
1. "E-verify program" means the electronic employment verification program created in Public
Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as
amended, that is jointly administered by the United States Department of Homeland Security and
the social security Administration, or its successor program.
2. 'Department program" means the employment verification program established pursuant to
Section 8-17.5-102(5)(c).
3. "Public Contract for Services" means this Agreement.
4. "Services" means the furnishing of labor, time, or effort by a Professional or a subprofessional
not involving the delivery of a specific end product other than reports that are merely incidental
to the required performance.
5. "Worker without authorization" means an individual who is unable to provide evidence that
the individual is authorized by the federal government to work in the United States
By signing this document, Professional certifies and represents that at this time:
1. Professional shall confirm the employment eligibility of all employees who are newly hired
for employment to perform work under the public contract for services; and
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2. Professional has participated or attempted to participate in either the e-verify program or the
department program in order to verify that new employees are not workers without authorization.
Professional hereby confirms that:
1. Professional shall not knowingly employ or contract with a worker without authorization to
perform work under the Public Contract for Services.
2. Professional shall not enter into a contract with a subprofessional that fails to certify to the
Professional that the subprofessional shall not knowingly employ or contract with a worker
without authorization to perform work under the Public Contract for Services.
3. Professional has confirmed the employment eligibility of all employees who are newly hired
for employment to perform work under the public contract for services through participation in
either the e-verify program or the department program.
4. Professional shall not use the either the e-verify program or the department program
procedures to undertake pre -employment screening of job applicants while the Public Contract
for Services is being performed.
If Professional obtains actual knowledge that a subprofessional performing work under the
Public Contract for Services knowingly employs or contracts with a worker without
authorization, Professional shall:
1. Notify such subprofessional and the Owner within three days that Professional has actual
knowledge that the subprofessional is employing or subcontracting with a worker without
authorization: and
2. Terminate the subcontract with the subprofessional if within three days of receiving the notice
required pursuant to this section the subprofessional does not stop employing or contracting with
the worker without authorization; except that Professional shall not terminate the Public Contract
for Services with the subprofessional if during such three days the subprofessional provides
information to establish that the subprofessional has not knowingly employed or contracted with
a worker without authorization.
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.
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 Owner may terminate this Agreement. If this
Agreement is so terminated, Professional shall be liable for actual damages to the Owner arising
out of Professional's violation of Subsection 8-17.5-102, C.R.S.
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.
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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.
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:
1. 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 funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
19. 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.
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(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.
21. 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.
22. 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.
23. Attornev's frees. 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.
24. 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.
25. Certification Regarding Debarment Suspension, Ineligibility,Ineligibilfty, and Voluntary Exclusion.
Professional certifies, by acceptance of this Agreement, that neither it nor its principals is presently
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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.
26. 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.
27. 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.
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:
Docti ftned by:
1-5 Wa. 4. 04
�— 20MOV4EE 194M ..
[Signature]
Sara G. Ott
By:
[Name]
Title: city Manager
Date: 3/29/2023 1 1:29:09 PM PDT
Approve as to Form:
Doc USlgn ed by:
. L
City Attorney
PROFESSIONAL:
[Signature]
By: _Jim Chesemore
[Name]
Title: Senior Vice President
Date: 3/21/23
General Conditions and Special Conditions can be found on City
of Aspen Website.
Purchasing I Aspen, Co
Agreement Professional Services Page 9