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HomeMy WebLinkAboutresolution.council.063-23RESOLUTION # 063 (Series of 2023) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND VICUNHA FLOORING 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 Yellow Brick Common Area Flooring Replacement, between the City of Aspen and Vicunha Flooring 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 Yellow Brick Common Area Flooring Replacement, between the City of Aspen and Vicunha Flooring 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 25th day of April, 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, April 25th, 2023. w r Nicole He ing, City Clerk DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 CITY OF ASPEN STANDARD FORM OF AGREEMENT CITY OF ASPEN PROFESSIONAL SERVICES City of Aspen Contract No.: 2023-143 AGREEMENT made this 14th day of April, 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: Vicunha Flooring 210 AABC Unit G Aspen, Colorado 91611 Phone: 970-925-4441 For the Following Project: Contract Amount: $134,742.14 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: 4/25/2023 Resolution No.:#063 Removal and disposal of existing flooring, installation of new common area flooring in the Yellow Brick. Exhibits appended and made a part of this Agreement: Exhibit A: Vicunha Proposal Agreement Professional Services Page 0 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than August 1, 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. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. Payment terms for work performed by Professional shall be the following: 50% of contract materials due at execution of contract, 50% of contract materials due at delivery, and 100% of contract labor due upon completion. 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. Agreement Professional Services Page I DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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. 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 Agreement Professional Services Page 2 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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) 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 ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall 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 ender 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 Agreement Professional Services Page 3 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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 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. 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 Agreement Professional Services Page 4 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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 A ment by-Q:Jty. 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 Authorization prohibited --CRS 8-17.5-101 & 24-76.5-101 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)(III) 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 Consultant 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 Consultant or a subconsultant 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 Agreement Professional Services Page 5 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 By signing this document, Consultant certifies and represents that at this time: 1. Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and 2. Consultant 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. Consultant hereby confirms that: 1. Consultant shall not knowingly employ or contract with a worker without authorization to perform work under the Public Contract for Services. 2. Consultant shall not enter into a contract with a subconsultant that fails to certify to the Consultant that the subconsultant shall not knowingly employ or contract with a worker without authorization to perform work under the Public Contract for Services. 3. Consultant 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. Consultant 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 Consultant obtains actual knowledge that a subconsultant performing work under the Public Contract for Services knowingly employs or contracts with a worker without authorization, Consultant shall: 1. Notify such subconsultant and the Owner within three days that Consultant has actual knowledge that the subconsultant is employing or subcontracting with a worker without authorization: and 2. Terminate the subcontract with the subconsultant if within three days of receiving the notice required pursuant to this section the subconsultant does not stop employing or contracting with the worker without authorization; except that Consultant shall not terminate the Public Contract for Services with the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with a worker without authorization. Consultant 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 Consultant 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, Consultant shall be liable for actual damages to the Owner arising out of Consultant's violation of Subsection 8-17.5-102, C.R.S. Agreement Professional Services Page 6 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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. 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 A ainst 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. Agreement Professional Services Page 7 DocuSign Envelope ID: F59FFBDC-D606-4E7E-B83D-FB5150F4FE06 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. 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. Agreement Professional Services Page 8 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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&Kding De arment Sus ension Ineligibility, and Voluntary Exclusion. Professional certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Professional or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 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 terms and conditions specified herein. Agreement Professional Services Page 9 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 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 ASP ail nail y., : �tabtl. �bS{t.Y' oo� [Signature By: Diane Foster [Name] Title: Assistant city Manager Date: 4/26/2023 1 11:00:27 AM MDT Approve as to Form: tiouusignud by: 37£i39£6W67-- . City Attorney PROFESSIONAL: oveeaw�n.e� �7.V�.tn.+lt �1GfNl.�.O [Signature] By: Eugenia Acevedo [Name] Title: owner Date: 4/14/2023 1 9:40:48 AM MDT General Conditions and Special Conditions can be found on City of Aspen Website. https://www.cityofaspen.com/497/Purchasinq Agreement Professional Services Page 10 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 EXHIBIT A: VICUNHA PROPOSAL March 03, 2023 To: City of Aspen 130 S. Galena St. Aspen, CO 81511-1975 Re: Yellow Brick - Common Areas Flooring 2023 Yellow Brick School 215 N Garmish St Aspen , CO 81511 Salsa Parson: Eugenia Acevedo Vieunha Flooring Phone 210 AABC, Unit G Aspen, CO 81611970-925-4441 Page: 1 of 8 Agreement Professional Services Page 11 DocuSign Envelope ID: F59FFSDC-D606-4E7E-B83D-FB5150F4FE06 Project Client: City of Aspen Project Name: Yellow Brick - Common Areas Flooring 2023 Project Number: 37059 Project Date: March 03, 2023 Area: Common Areas Material Rubber Style Noramento Grano Color: 5303 Frankincense 39.53°x39.53" Tiles 3.5mm thickness Rubber Style Noramento Grano Color: 5304 Black Pepper 39.53"x39.53" Tiles 3.5mm thickness Nora Dryfix MR Adhesive Nora Rubber wall base Color: 6266 Hurricane Wall base adhesive Schluter metal transitions Material Subtotal $97,828.14 Estimated Sales Tax: $0.00 Estimated Transportation and Handling: $4,500.00 Material Total: $102,328.14 Labor Furniture removal NOT included. Kitchen appliances MUST be remove and replace by OTHERS. Demo existing rubber floor Demo existing rubber wall base Subfloor prep, clean glue and smooth concrete for ne flooring Install new rubber floor, direct glue method. See floor plan for Pattern and color directions. Install transitions Install new rubber wall base Labor Total: $32,414.00 Total Area: $134,742.14 INITIAL Sales Person: Eugenia Acevedo Page: 2 of 8 Vicunho Flooring Phone 210 AABC, Unit G Aspen, CO 81611970-925-4441 Agreement Professional Services Page 12 DocuSign Envelope ID: F59FFBDC-D606-4E7E-B83D-FB5150F4FE06 Vicunha Flooring hereby proposes to furnish material and perform the labor necessary for the completion of all area mentioned for the Project. All material is guaranteed to be as specified and the work to be performed in accordance with the drawing and specifications submitted for this work and completed in a substantial manner for the sum of: $102,328.14 Material Total $32,414.00 Labor Total $134,742.14 Project Total with payments to be made as follows. • 100% of the contract materials due upon acceptance with signed copy of this proposal. .100% of the contract labor due upon completion. THIS PROPOSAL IS VALID FOR TEN DAYS FROM 03/03/2023 TERMS AND CONDITIONS 1. SCOPE OF SERVICES A. For the above -referenced Project, Vicunha Flooring will perform the labor and provide the materials (the "Materialso) set forth in the Confirmation of Proposal (the labor and the Materials are collectively referred to herein as the "Services") in accordance with these Terms and Conditions (the Confirmation of Proposal, the Proposal, and these Terms and Conditions are collectively referred to herein as the "Confirmation). B. Vicunha Flooring has relied upon the information provided by Client in the preparation of the Proposal, and may rely on information provided by or through Client during the performance of the Services as complete and accurate without independent verification, unless stated otherwise in the Proposal. 2. PAYMENTS TO Vicunha Flooring A. Client shall pay to Vicunha Flooring the amount of the Price for the Services as stated in the Proposal. Invoices shall be in Vicunha Flooring's standard format and are payable upon receipt. Client agrees payment shall be cash on delivery unless otherwise stated in the Proposal. Timely payment of invoices is a material term of this Confirmation. A late charge will be added to all amounts not paid within 30 days of the invoice date and shall be calculated at 1.5 percent (1.5%) per month. Client shall reimburse any costs incurred by Vicunha Flooring in collecting any delinquent amounts, including reasonable attorneys' fees. If a portion of Vicunha Flooring's invoice is disputed, Client shall pay the undisputed portion by the due date, and shall advise Vicunha Agreement Professional Services Page 13 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 Flooring in writing of the basis for any disputed portion of any invoice. B. Title to Materials shall not pass to the Client until the full amount of the Price set forth in the Proposal has been paid. C. Vicunha Flooring shall not be liable for shortages of Materials when the quantities are based on drawings or specifications submitted to Vicunha Flooring by Client. D. Taxes imposed on the Services by state or local authorities shall be in addition to the Price stated in the Proposal. 3. RETURNS A. Returns of Materials that are unused, like -new condition and regularly stocked by Vicunha Flooring or its suppliers is not guaranteed and is subject to prior written approval by Vicunha Flooring and further subject to the restocking fee charged by the supplier of the material being returned and any applicable shipping costs. B. Custom orders are not refundable and cannot be returned. 4. INSURANCE A. During the course of performance of the Services, Vicunha Flooring shall maintain Worker's Compensation insurance with limits as required by statute; Employer's Liability insurance with limits of $1,000,000; Commercial General Liability insurance with limits of $1,000,000; and Automobile Liability insurance with limits of $1,000,000, unless different limits are set forth in the Proposal. B. If Vicunha Flooring is providing the Services as a subcontractor to the General Contractor, the General Contractor shall name Vicunha Flooring as an Additional Insured on the General Contractor's liability insurance policies covering claims for personal injuries and property damage. Upon request, the General Contractor shall provide certificates evidencing such insurance to Vicunha Flooring. C. Client and Vicunha Flooring release each other and waive all rights of subrogation against each other and their officers, directors, members, agents, or employees for damage covered by any property insurance during and after the completion of the Services. S. INDEMNIFICATION A. To the greatest extent allowed by law, Client agrees to indemnify, defend and hold harmless Vicunha Flooring from any and all loss to the extent caused by the negligence or intentional conduct of Client, its employees, agents, subcontractors or suppliers. S. To the greatest extent allowed by law, Vicunha Flooring agrees to indemnify, defend and hold harmless Client from any and all third party personal injury or third party property loss to the extent caused by the Agreement Professional Services Page 14 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 negligence or intentional conduct of Vicunha Flooring, its employees, agents or subcontractors or suppliers arising out of the Services. 6. WARRANTIES A. Vicunha Flooring will transfer to Client any manufacturer warranties available for flooring, tile, carpet and stone slab and other Materials, and Vicunha Flooring will assist with processing any manufacturer warranty claims. However, Client acknowledges that any warranty with respect to the quality of the Materials is only provided by the manufacturer and not Vicunha Flooring and it is Client's responsibility to comply with any manufacturer warranty conditions. B. Vicunha Flooring warrants that the material supplied will be as specified in the Proposal, and the Services performed shall be in substantial compliance with any drawings and specifications referenced In the Proposal. C. Vicunha Flooring shall exercise reasonable skill, care and diligence in the performance of the Services and shall carry out its responsibilities in accordance with customarily accepted practices of flooring, tile, carpet and stone slab installation companies in Colorado. Vicunha Flooring shall perform at its own cost, those services necessary to correct defects in installation reported by Client to Vicunha Flooring in writing within one (1) year from the completion of Vicunha Flooring's Services. D. In no event shall Vicunha Flooring be liable to Client for any indirect or consequential damages including, without limitation, damages or losses in the nature of loss of revenue or profit, loss of reputation, or lost production. E. If permitted by law, Vicunha Flooring's aggregate liability for all damages arising out of the Services, whether or not covered by Vicunha Flooring's insurance, shall not exceed the Price paid for the Services, unless stated otherwise in the Proposal. 7. DISCLAIMERS EXCEPT AS OTHERWISE PROVIDED HEREIN (BUT NOTWITHSTANDING SECTION 6 HEREIN), Vicunha Flooring DOES NOT REPRESENT OR WARRANT THAT THE SERVICES (INCLUDING MATERIALS INSTALLED OR PROVIDED AS PART OF THE SERVICE) ARE OR WILL BE FREE OF DEFECTS. THE SERVICES (AND ANY INSTALLED MATERIALS) ARE PROVIDED "AS IS" AND Vicunha Flooring EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES AND AGREES THAT (I) MATERIALS (INCLUDING BUT NOT LIMITED TO STONE, WOOD, TILE, GLASS, METAL, FABRICS, CARPETS, COMPOSITES, LAMINATES) MAY BE COMPRISED OF NATURAL MATERIALS WHICH MAY DIFFER VISUALLY AND IN TEXTURE FROM SAMPLES; (II) SUCH MATERIALS ARE COMMONLY SUBJECT TO FADING, SCRATCHING, DENTING, CHIPPING, CRACKING, STAINING, Agreement Professional Services Page 15 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 EXPANSION AND CONTRACTION DUE TO EVERYDAY WEAR AND TEAR, AND TEMPERATURE AND HUMIDITY VARIATION (I.E. DUE TO CHANGING SEASONS) AND OTHER DAMAGE, INCLUDING DAMAGE FROM FAILURE TO COMPLY WITH MANUFACTURER RECOMMENDATIONS; (III) THE INSTALLATION WORK AREA MAY RESULT IN UNAVOIDABLE DUST, ODOR AND/OR OTHER DAMAGE TO THE SURROUNDING AREA FOR WHICH Vicunha Flooring WILL NOT BE LIABLE AND IT IS CLIENT`S SOLE RESPONSIBILITY TO MITIGATE SUCH IMPACT BY PROTECTING AND COVERING SUCH AREAS; AND (IV) CLIENT'S CHOICE AND USE OF THE MATERIALS IS AT CLIENT'S OWN DISCRETION AND RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF MATERIALS. S. PERIOD OF SERVICE AND SCHEDULE A. The provisions of this Confirmation have been agreed to in anticipation of the orderly and continuous progress of the Services. Vicunha Flooring's obligation to render the Services shall extend for a period which may reasonably be required for the completion of the Services. B. Vicunha Flooring shall not be liable for delays or failures in delivery or installation caused by causes beyond the control of Vicunha Flooring. 9. ESTIMATES, SCHEDULES, FORECASTS, AND PR03ECTIONS Any preliminary estimates, schedules, forecasts, or projections prepared by Vicunha Flooring that are not part of this Confirmation are opinions only based on Vicunha Flooring's experience, qualifications and judgment. Vicunha Flooring does not guarantee that actual rates, costs, quantities, performance or schedules will not vary significantly from preliminary estimates, schedules, forecasts or projections prepared by Vicunha Flooring. 10. CHANGES A. Client shall have the right to make changes within the general scope of the Services, with an appropriate change In compensation and schedule, upon execution of a mutually acceptable Change Order signed by an authorized representative of Client and Vicunha Flooring. B. Vicunha Flooring shall have no obligation to perform changed work in the absence of a fully executed Change Order. 11. TERMINATION The Services may be terminated by Client or Vicunha Flooring by seven (7) days' written notice in the event of a substantial failure to perform in accordance with the terms of this Confirmation by the other party through no fault of the terminating party and such party has not cured such failure to perform. If Vicunha Flooring is terminated, Client shall pay Vicunha Flooring all amounts due Vicunha Flooring for all Services properly rendered and expenses incurred to the date of receipt of the notice of termination, plus Agreement Professional Services Page 16 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 actual costs incurred by Vicunha Flooring in terminating the Services. 12. DISPUTES A. If a dispute arises relating to the performance of the Services and should that dispute result in litigation, it is agreed that the substantially prevailing party (as determined by the court) shall be entitled to recover its reasonable costs of litigation, including staff time, court costs, attorneys' fees and other expenses. B. Prior to initiating litigation, the parties shall participate In good faith negotiations to resolve any and all disputes. Should negotiations fail, the parties agree to submit to and participate in a third party facilitated mediation as an express condition precedent to resolution by litigation. The mediation shall take place where the Project is located, and the parties shall share equally in the cost of the mediator. 13. CONTROLLING LAW AND VENUE A. This Confirmation shall be subject to, interpreted and enforced according to the laws of the State where the Project is located without regard to its conflicts of law provisions. B. Ve'nue for any dispute will be in a court of competent jurisdiction in the State where the Project is located. C. Client and Vicunha Flooring waive any right to a jury trial. 14. RIGHTS AND BENEFITS Vicunha Flooring's Services shall be performed solely for the benefit of Client and not for the benefit of any other persons or entities. 15. NO ASSIGNMENT Neither Client nor Vicunha Flooring shall assign or transfer any interest in this Confirmation without the written consent of the other. 16. ENTIRE CONTRACT A. This Confirmation contains the entire agreement between Vicunha Flooring and Client relative to Vicunha Flooring's Services for the Project. All previous or contemporaneous agreements, representations, promises and conditions relating to Vicunha Flooring's Services for the Project are superseded by this Confirmation. B. In the event Client issues to Vicunha Flooring a purchase order for the Services, no preprinted terms thereon shall become part of this Confirmation unless specifically included in this Confirmation. C. This Confirmation can only be modified in a writing signed by Client and Vicunha Flooring. 17. SEVERABILITY Agreement Professional Services Page 17 DocuSign Envelope ID: F59FF8DC-D606-4E7E-B83D-FB5150F4FE06 Any unenforceable provision herein shall be amended to the extent necessary to make it enforceable; if not possible, it shall be deleted and all other provisions shall remain in full force and affect. Acceptance of Proposal & Terms and Conditions I have read the above Proposal and the Terms and Conditions set forth; all of the prices and specifications are satisfactory and hereby accept. We authorize you to perform the work specified above. Buyer: Date: Seller: Date: Agreement Professional Services Page 18