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HomeMy WebLinkAboutresolution.council.116-23RESOLUTION NO. 116 Series of 2023 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASPEN AND WALKER CONSULTANTS, INC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS the City of Aspen's goal is to expand our transportation system to reduce vehicle miles traveled and air pollution; and assure community alignment. WHEREAS the City of Aspen seeks to develop an actionable plan for its parking, transit and Transportation Demand programs by contracting with Walker Consultants, Inc via a PROFESSIONAL SERVICES AGREEMENT which is annexed hereto and made a part thereof; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, That the City Council of the City of Aspen hereby approves the Professional Services Agreement for consultant services, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen 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 22nd day of August 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 e ity of Aspen, Colorado, at a meeting held on the day hereinabove stated. Nicole Henning, City Clerk - - ,. _ _ �- __� � �� ��� �� i DocuSign Envelope ID: AA54D000-907F-4CB7-9E2F-4CF38BB778F9 CITY OF ASPEN STANDARD FORM OF AGREEMENT CITY OFASPEP PROFESSIONAL SERVICES City of Aspen Contract No.: 2023-224 AGREEMENT made this I' day of August, 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: Walker Consultants c/o Mallory Baker 10375 Park Meadows Drive, Suite 425 Lone Tree, CO 80124 917-510-7691 m bakerAwa f kercon su ltants.com For the Following Project: Comprehensive Parking and Transportation Plan Contract Amount: Total: $261,115 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. Exhibits appended and made a part of this Agreement: Qty Council A roval: Date: 8/22/2023 Resolution No.: 2023-116 Exhibit A: Proposal including Scope of Work and Fee Schedule The City and Professional agree as set forth below. Agreement Professional Services Page 0 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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 May 1, 2024. 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. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit A appended hereto. Payment shall be made on a percent complete basis by task plus enumerated reimbursable expenses, with a total fee not to exceed $261,115. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assi and biiity. 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 ofthe 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, and employees, each of whom shall, for this purpose be deemed to be an employee ofthe Professional to the extent ofthe 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. Payment for services rendered until that date are owned to the Professional. 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, copies of 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 Agreement Professional Services Page 1 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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 use his or her best efforts to provide the said services on behalf of the City. No agexA,- employee, or servant of Professional shall be, or shall be deemed to be, the employee, 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, 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 eA liability and proven negligible 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. The Professional agrees, to the fullest extent permitted by law, to indemnify and hold harmless the City against all damages or liabilities to the extent caused by the Professional's proven negligent performance of professional services under this Agreement and that of its subconsultants or anyone for whom the Professional is legally liable. 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 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 unposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of Evidence of qualified self - insured status may be substituted for the Worker's Compensation requirements of this paragraph. Agreement Professional Services Page 2 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 (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 or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. (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 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. Agreement Professional Services Page 3 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 (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. Q)t 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 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 ement by Ci . 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 Agreement Professional Services Page 4 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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. "B-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 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. Agreement Professional Services Page 5 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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. 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, Agreement Professional Services Page 6 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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. (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 Agreement Professional Services Page 7 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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. 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. 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. 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. 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 Agreement Professional Services Page 8 DocuSign Envelope ID: AA54D000-907F-4C87-9E2F-4CF38BB778F9 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 AS�g,4,gQI.ORADO: AM A M on if [Signature] By: Sara G. Ott [Name] Titic: city Manager Date: 8/25/2023 1 4:08:41 PM PDT Approve as to Form: 5A98Y®fpnrd py, ar� o �. ART— c;ty ttbrney PROFESSIONAL: FjgneuS�nubp J. vhr --AAAFQ{ OPE64A4 [Signature] By: Andrew ]. vidor [Name] Title:Pri nci pal Date8/15/2023 1 5:17:42 PM PDT General Conditions and Special Conditions can be found on City of Aspen Website. Purchasing I Aspen, CO Agreement Professional Services Page 9