HomeMy WebLinkAboutresolution.council.105-02 RESOLUTION NO. iOr:~
(SERiES OF 2002)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, APPROVING A
PROFESSIONAL SERVICE AGREEMENT BETWEEN THE CITY OF ASPEN AND
ADVENTURE DESIGN LIMITED, AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN.
WHEREAS, there has been submitted to the City Council a Professional Service
Agreement between the City of Aspen, Colorado and Adventure Design Limited, a copy of
which is annexed hereto and part thereof.
NOW. THEREFORE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO.
Section One
That the City Council of the City of Aspen hereby approves that a Professional Service
Agreement between the City of Aspen, Colorado, and Adventure Design Limited, regarding the
decorative features in the pool area of the ARC facility, 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.
Dated: ~/'~~ /' ~ _, 2002.
I, Kathryn Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree and
accurate copy,o f..t~hat resolution adopted by the City Council of the City of Aspen, Colorado, at a
meeting held ~ // ,2002.
EXHIBIT "A' to Professional Services Agreement
Scope of Work
(See Proposal Dated 07OCT02, attached:
PS1-971.doc Page 7
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and ADVENTURE DESIGN LTD, ("PrOfessional").
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
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 fi:om 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 he
completed no later than 30JAN03. 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. Except as otherwise mutually agreed to by the
parties the payments made to Professional shall not initially exceed US $53,000.00. 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 fi:om receipt of the Professional's bill. Payment shall be made in US funds by
wire transfer to Professional's Canadian Account.
4. Non-Assignability. Both parties recognize that this contract 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 sl/all, 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. The Professional or the City may terminate 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
PS1-971.doc Page 1
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.
6. Covenant Against Contingent Fees. The Professional warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or
any other consideration contingent upon or resulting from the award or making of this contract.
7. Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nottfing 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 e~nployees 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 indemn/fy 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 fi'om
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of
any kind whatsoever, which ar/se out of or are in any manner connected with this contract, if 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 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, c/aims 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
~-~ 1-97 l.doc Page 2
defense costs incun'ed 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 ali 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) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance w/th minimum limits of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease ~ policy limit, and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease ~ each employee. Evidence of qualified self-insured status may be substituted
for the Workers' Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate. The po~licy shall be applicable to all premises and
operations. The policy shall inclUde coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for contractual and
employee acts), blanket contractual, independent contractors, products, and completed
operations. The policy shall contain a severability of interests provision;
(iii) Comprehensive Automobile Liability insurance With minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($l,000,00-
0.00) 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
~ 1-971.doc Page 3
requirements of this Section shall be met by each employee of the Professional providing
services to the City under this contract.
(iv) Professional Liability insurance with the minimum limits of ONE
MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS
($1,000,000) aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Professional. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Professional shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages, condi-
tions, and minimum limits are in full force and effect, and shall be reviewed and approved by the
City prior to commancement 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 aud 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 premimus 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 $150,000.00
per person and $600,000 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 C]~RSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and are available to Professional for inspection during normal business hours.
City makes no representations whatsoever with respect to specific coyerages offered by CIRSA.
~ 1-971.doc Page 4
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 to the
respective persons and/or addresses listed below or mailed by certified mail return receipt
requested, to:
City: Professional:
Ed Sadler, Asst. City Manager Gary Sawatzky
City of Aspen Adventure Design Ltd.
130 South Galena Street 205 Mulholland Drive
Aspen, Colorado 81611 Comox B.C. VgM3W5
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 13-98,
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 Agreement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith-
standing 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. General Terms.
-971.doc Page 5
(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 ~nforceability 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
fi.om time to time in effect.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on
the date hereinafter written.
[SIGNATURES ON FOLLOWING pAGEI
ATTESTED BY: CITY OF ASPEN, COLORADO:
By:
Title:
Date:
~1-971.doc Page 6
ROM Gator Pit Familg F~n C~ntr~ PHONE NO. : 925 0?07 Now. 07 Z002 09:37AM Pi
EXT WITNESS WHEREOF, the pm-tics hereto have execuled, or caused to bc executed by :heir duJ¥
aud~or~zcd oi~¢ials, diis A~eement ~ ~lu'~;e topic.e, each of which ~hail be deemed an original on
the da~ hcr~ina%r wriacn.
ISIGNATURES ON FOLLOWING PAGEI
ATTES I I,D B~., CITY 01: ASPEN: COLOi~ ADO:
..... ~y: .... ~,: .--~'~. .....
EXHIBIT "A" to Professional Services Agreement
Scope of Work
(See Proposal Dated 07OCT02, attached:)
PS 1-971.doc Page 8
Oct 7, 2o02
Re: Proposal Package - Theming decor .~ i
Iselin Pool
Aspen, Colorado
Attn, Steve Bossart
Adventure Design Ltd, is pleased to offer the following quotation.
For the Leisure Pool Decor Package.
To provide design, labor, materials and all necessary methods of
application and installation for all of the decor elements referred to and
described by the decor package and drawings listed in the specifications.
( as per locations specified in the VDA drawings.)
( see photos )
All rock to be constructed of fiberglass reinforced concrete
Non ponding, non permeable
Finishes to be of high gloss epoxy ( ease of cleaning )
Small As_~en Trees ( 4 )
( In locations to be specified after consultation with architects.)
Bases of trees to be non organic construction
Bases ( to the bottom of branches ) approximately 48"
Trees to be a total of approximately 12' to 14 '
Leaves - high quality ficus silk leaves
Column Aspen Trees ( 2 )
Columns to be sculpted with acrylic stucco to represent the bark of
aspen trees.
As per locations specified by VDA drawings
Non organic construction.
Acrylic coating ( painted to look like olc~ w~athered fence posts )
ADVENTURE DESIGN LTD. 205 Mulholland Ddve, Comox B.C. VgM3W5
Mu~
As per locations specified by sketch ( attached )
Note: the preparation and priming of all" mural walls" fittings and fixtures
to be done by others with the specifications by Adventure Design Ltd.
( One coat color keyed primer, one coat of semigloss acrylic,
General Paint color )
Snowmastem T-lO00 snow machine
Cash allowance only. ( $1,500 ) Installation and necessary electrical
supply by others,
Total price for the above described pool decor package ' $ 53,000 US
Plus any applicable taxes.
Permit to work In the USA to be provided by others.
Accomodation to be provided by others.
Thank you for the opportunity to offer this quotation.
Garry Sawatzky
president
&D~/'EI~ITURE DESIC, I~I LTD. 20s Mulholland Ddvel Comox B.C. VgM3W5