HomeMy WebLinkAboutresolution.council.117-02 SOL,mON NO.
(SERIES OF 2002)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, APPROVING A
SUPPLY PROCUREMENT AGREEMENT AND CONSTRUCTION CONTRACT BETWEEN
THE CITY OF ASPEN AND MONOLITHIC SCULPTURES, INC., AND AUTHORIZING
THE CITY MANAGER TO EXECUTE SAD AGREEMENT AND CONTRACT ON
BEHALF OF THE CITY OF ASPEN.
WHEREAS, there has been Submitted to the City Council Supply Procurement
Agreement and Construction Contract between the City of Aspen, Colorado and Monolithic
Sculptures, Inc., 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 Supply Procurement
Agreement and Construction Contract between the City of Aspen, Colorado, and Monolithic
Sculptures, Inc., regarding the Wagner Park Playground Equipment, a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager to execute said
Agreement and Contract on behalf of the City of Aspen.
accurate copy of tJ~t r. esolutiqn adopted,l:)y the City Council of the City 0f AsPen, Colorado, at a
meeting held .,~ff~_.49'~//Z.5,/ /,~ ,2002.
Kathryn S. Koch, City Clerk
CONTRACT FOR CONSTRUCTION
EXHIBIT 'A"
prooosal for weaner Park Custom InstalletiO~
It~m,l _City ~ost
1, GeoScutptTM Climbing Sculpture 1
"Vertebrae"
(per 6121102 rendering attached)
(per 5/3/02 Design Agreement)
Materials $ 21.150
Fabrication 31,725
2. GeoSculptTM Climbing Sculpture '1
"Platform and SJlde"
(per 6/21102 rendering attached)
(per 5/3/02 Design Agreement)
Materiels 7,930
Fabrication 9.695
3. $~¥dex Panels {under Rbar) 800 sqft* 8,000
*addition/alternate
4. EPDM Surfacing 180 sqff 2:700
5. Geric Play Features 8,303
(under separate Supply Procurement Agreement)
6. Goric Play Features Installetion/Shipping 5,450
(under separate Supply Procurement Agreement) ....
Total Materials: $ 48,083
Total Fabrication: 41.420
Total Installation/Shipping: 5,450
CONTRACT TOTAL: $ 94,953
Exhibit B
WAGNER PARK
Cost Summary-Proposed Playground Construction Costs Aspen Parks Department
10-Dec-02
CONSTRUCTION ITEM QTY UNIT UNIT COST TOTAL COST
PLAY AREA PREPARATION
Resilient wood chip supply 1 LS 3, i88.20 3,188.20
Tree Planter Capstone 1 LS 1,836.00 1.836.00
Tree Planter Stucco Wall I LS 720.00 720.00
Monolithic Design Fee ] LS 6,500.00 6,500.00
Subtotal Play Preparation 12,244.20
Subtotal 12,244.20
Contingency 0.00
Total Initial Playground Construction Cost [ 12,244.20l
PLAY AREA CONSTRUCTION
Concrete alphabet engraving ** I LS 4,725.00 4,725.00
Epoxy grout alphabet letters ** 1 LS 1,500.00 1,500.00
Goric "Eddy" spinning toys (incl delivery) 3 EA 2,300.00 6,900.00
Monolithic custom play structures 1 LS 40,083.00 40.083.00
-including Goric net climber products)
Play structure fabrication/installation 1 LS 46,870.00 46,870.00
Bench allowance I LS 2,500.00 2,500.00
Site construction labor 1 LS 8,000.00 8,000.00
** Proposed work/bids
Subtotal New Playground Enhancement 110,578.00
Subtotal 110,578.00
General Contingency 2, 150.00
Total Proposed Playground Enhancement Cost [ 124,972.20]
Skydex Panels (under Fibar) (add.cost) 1 LS 8,000.00 8,000.00
Total Proposed Playground Cost with Skydex Product [ 132,972.20]
Exhibit: C
SUPPLY PROCUREMENT AGREEMENT
THIS AGREEMENT, made and entered into, this 16th day of December, 2002
between the CITY OF ASPEN, Colorado, herein after referred to as the "City" and
MONOLITHIC SCULPTURES, INC. hereinafter referred to as the "Vendor".
WITNESSETH, that whereas the City wishes to purchase a MONOLITHIC CUSTOM
PLAYGROUND SYSTEM hereinafter called the UNIT(S) being mo~e fully described and
attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the
Contract Documents and any associated Specifications, and Vendor Wishes to sell said
UNIT(S) to the City as specified in its Bid.
NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set
forth agree as fotlows:
1. Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as
described in the Contract Document and more specifically in the Proposal Form
(Exhibit "A") for the sum of Forty-eight Thousand eighty'three Dollars a nd zero
Cents ($48,083.00).
2. Delivery. Wagner Park; 321 East Cooper Street, Aspen, Colorado.
3. Contract Documents. This Agreement shall inclnde all Contract Documents and
said Contract. Documents are hereby made a part of this Agreement as if fully set
out at length herein.
4. Warranties. Vendor agrees to warrant all components of playground products -
against any defects in workmanship or materials for at least one year from date of
delivery. Vendor agrees to repair or replace, free of charge all parts found
defective.
5. 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 Vendor respectively and their
agents, representatives, employee, successors, assigns and legal representatives.
Neither the City nor the Vendor shall have the right to assign, transfer or sublet its
interest or obligations hereunder without the written consent of the other party.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or phrties, except to parties to whom Vendor
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 Vendor because of any breach hereof or
because of any of the terms, covenants, agreements or conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be
construed, or operate as, a waiver of any subsequent default of any of the terms,
covenants or conditions herein contained, to be performed, kept and observed by
the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue
is agreed to be exclusively in the courts of Pitkin County, Colorado.
9. 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.
10. 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.
11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor 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
Vendor 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:
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of
Interest. Vendor 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 Vendor for the purpose of securing business,
Vendor 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.
Vendor 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.
4 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:
i. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, 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 Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of Ck¥. 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.
14. 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 contingem upon
the availability of those funds for payment pursuant to the terms of this Agreement.
15. City Council Approval. If this Agreement requires the City m pay an amount of
money in excess of $25,000.00 it shall not be deemed valid until it has been
approved by the City Council of the City of Aspen.
16. 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 under this Agreement. Vendor agrees to meet all of the requirements of
City's municipal code, section 13-98, pertaining to nondiscrimination in
employmem. Vendor further agrees to comply with the letter and the spirit of the
Colorado Antidiscrimination Act of 1957, as amended, and other applicable state
and federal laws respecting discrimination and unfair employment practices.
17. 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 parzies. In addition,
vendor 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 Agreemem must be in writing and be
executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an
authorized representative of Vendor 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 City and the Vendor, respectively have caused this
Agreement to be duly executed the day and year first herein written in three (3) copies, all of
which, to all intents and proposes, shall be considered as the original.
FOR THE CITY OF ASPEN:
By:
City Manager
ATTEST:
VENDOR:
2 SCULPTURES, INC.
'Tide
supply_proc
Exhibit O
CONTRACT FOR CONSTRUCTION
(Short Form)
THIS CONTRACT, made and entered into on December 16, 2002, by and between the
CITY OF ASPEN, Colorado, hereinafter called the "City", and MONOLITHIC
SCULPTURES, INC., hereinafter called the "Contractor".
THEREFORE, in consideration of the mutual covenants and Contracts herein contained,
and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
i. Constrtmtion of Project. Contractor agrees to furnish all labor, materials,
tools, machinery, equipment, temporary utilities, transportation and any other facilities
needed therefor, and to complete in a good, workmanlike and substantial manner the
Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit
"A" which is incorporated herein as if fully set forth (the "Project").
2. Plans and Specifications; Compliance with Laws. The Project is to be
constructed and completed in strict conformance with the Scope of Work and/or Proposal
appended hereto for the same approved in writing by the parties hereto. The Project shall
also be constructed and completed in strict compliance with all laws, ordinances, rules,
regulations of all applicable governmental authorities, and the City of Aspen Procurement
Code, Title 4 of the Municipal Code, including the approval requirements of Section 4-08-
040. Contractor shall apply for and obtain all required permits and licenses and shall pay
all fees therefor and all other fees required by such governmental authorities.
3. Payments to Contractor. In consideration of the covenants and Contracts
herein contained being performed and kepi by Contractor, including the supplying of all
labor, materials and services required by this Contract, and the construction and
completion of the Project, City agrees to pay Contractor a sum not to exceed Forty-six
Thousand Eight Hundred Seventy Dollars ($46,870.00) or as shown on Exhibit "A".
4. Commencement and Completion. Contractor agrees to commence work
hereunder immediately upon execution hereof, to prosecute said work thereafter diligently
and continuously to completion, and in any and all events to substantially Complete the
same not later than June 6, 2003, subject to such delays as are permissible under the
"Extension of Time for Completion" section of this Contract. '
5. Payment of Bills and Charges., Contractor shall pay promptly all valid bills
and charges for material, labor, machinery, equipment or any other service or facility used
CC5-971.doc Page: I
in connection with or arising out of the Project, and shall obtain periodic releases from all
subcontractors and material suppliers supplying labor or materials to the Project
concurrently with Contractor's delivering any payment to such subcontractors and material
suppliers. Contractor shall indemnify and hold City and City's officers, employees,
agents, successors and assigns free and harmless against all expenses and liability suffered
or incurred in connection with the claims of any such subcontractors or material suppliers,
including but not limited to court costs and attorney's fees resulting or arising therefrom;
provided that Contractor shall be excused from this obligation to the extent that City is in
arrears in making the payments to Contractor. Should any liens Or claims of lien be filed of
record against the Property, or should Contractor receive notice of any unpaid bill or
charge in connection with construction of the Project, Contractor shall immediately either
pay and discharge the same and cause the same to be released of record, or shall furnish
City with the proper indemnity either by title policy or by corporate surety bond in the
amount of 150 % of the amount claimed pursuant to such lien.
6. Releases. Contractor shall, if requested by City, before being eniitled to
receive any payment due, furnish to City all releases obtained from subcontractors and
material suppliers and copies of all bills paid to such date, properly receipted and
identified, covering work done and the materials furnished to the Project and showing an
expenditure of an amount not less than the total of all previous payments made hereunder
by City to Contractor.
7. Hierarchy of Project Documents. This Contract and the Proposal or Scope of
Work appended hereto as Exhibit "A" are intended to supplement one another. In case of
conflict, however, this Contract shall control both.
8. Changes in the Work. Should the City at any time during the progress of
the work request any modifications, alterations or deviations in, additions to, or omissions
from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the
same shall in no way affect or make void this Contract; but the amount thereof shall be
amortized over the remaining term of this Contract and added to or deducted, as the case
may be, from the paymems set forth in Paragraph 3 above by a fair and reasonable
valuation, based upon the actual cost of labor and materials. This Contract shall be deemed
to be completed when the work is finished in accordance with the original Proposal or
Scope of Work as amended or modified by such changes, whatever may be the nature or
the extent thereof. The rule of practice m be observed in fulfillment of this paragraph shall
be that, upon the demand of either City or Contractor, the character and valuation of any or
all changes, omissions or extra work shall be agreed upon and fixed in writing, signed by
City and Contractor, prior to performance.
9. Contractor's Failure to Perform. Should Contractor, at any time during
the progress of the work, refuse or fail m supply sufficient material or workmen for the
expeditious progress of said work or fail to perform any other provisions of this Contract,
City may, upon giving notice in writing to Contractor as provided herein and upon
Contractor's failure m remedy any such failure within 3 days from receipt of such notice,
CC5-971.doc Page: 2
terminate this Contract and provide the necessary material and workmen to f'mish the work
and may enter upon the Property for such purpose and complete said work. The expense
thereof shall be deducted from the payments remaining under Paragraph 3 above, or if the
total cost of the work to City exceeds the amount of such remaining payments, Contractor
shall pay to City upon demand the amount of such excess in addition to any and all other
damages to which City may be entitled. In the event of such termination, City may take
possession of all materials, equipment and appliances belonging to Contractor upon or
adjacent to the Property upon which said work is being performed and may use the same in
the completion of said work. Such termination shall not prejudice or be exclusive of any
other legal rights which City may have against Contractor.
10. Extension of Time for Completion. Time is of the essence of this Contract
and Contractor shall substantially complete the work during the time provided for herein.
However. the time during which Contractor is delayed in said work by (a) the acts of City
or its agents or employees or those claiming under Contract with or permission from City,
or (b) the acts of God which Contractor could not have reasonably foreseen and provided
against, or (c) unanticipated stormy or inclement weather which necessarily delays the
work, or (d) any strikes, boycotts or obstructive actions by employees or labor
organizations and which are beyond the control of Contractor and which it cannot
reasonably overcome, or (e) the failure of City to make progress payments promptly, shall
be added to the time for completion of the work by a fair and reasonable allowance.
Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a
high elevation where inclement whether conditions are common. This fact has been
considered by Contractor in preparing its Proposal and or agreeing to the Scope of Work.
Furthermore, Contractor shall have the right m stop work if any payment, including
payment for extra work, is not made to Contractor as provided in this Contract. In the
event of such nonpayment, Contractor may keep the job idle until all payments then due are
received.
11. Unforeseen Conditions. It is understood and agreed that Contractor, before
incurring any other expenses or purchasing any other materials for the Project, shall
proceed to inspect the work site and all visible conditions and that if, at the time of
inspection therefor, the Contractor finds that the proposed work is at variance with the
conditions indicated by the Proposal, Scope of Work. or information supplied by City, or
should Contractor encounter physical conditions below the surface of the ground of an
unusual nature, differing materially from those ordinarily encountered and generally
recognized as inherent in work of the character provided for in this Contract or inherent in
a work site located in the Rocky Mountains, Contractor shall so notify City, and City shall
at that time have the right and option to immediately cancel and terminate this Contract or
to instruct Contractor to continue the work and add the additional amount attributable to
such unforeseen conditions to the payments due Contractor as set forth above.
It is agreed that in the evem of any cancellation by City in accordance with this section,
Contractor shall be paid the actual costs of the work done prior to the time of cancellation.
In computing such costs, building permit fees, insurance and such financing and title
CC5-971.doc Page: 3
charges as are not refundable shall be included; provided that supervision time, office
overhead and profit shall not be included in such costs to be refunded to Contractor by
reason of such cancellation.
12. Acceptance by City. No payment hereunder nor occupancy of said
improvements or any part thereof shall be construed as an acceptance of any work done up
to the time of such payment or occupancy, but the entire work is to be subject to the
inspection and approval of City at the time when Contractor notifies City that the Project
has been completed.
13. Notice of Completion; Contractor's Release. City agrees to sign and file of
record within five (5) days after the substantial completion and acceptance of the Project a
Notice of Completion. If City fails to so record the Notice of Completion within said five
(5) day period, City hereby appoints Contractor as City's agent to sign and record such
Notice of Completion on City's behalf. This agency is irrevocable and is an agency
coupled with an interest. Contractor agrees upon receipt of final payment to release the
Project and property from any and all claims that may have accrued against the same by
reason of said construction. If Contractor faithfully performs the obligations of this
Contract on its part to be performed, it shall have the right to refuse m permit occupancy of
any structures by City or City's assignees or agems until the N6tice of Completion has
been recorded and Contractor has received the payment, if any, due hereunder m
completion of construction, less such amounts as may be retained pursuant to mutual
Contract of City and Contractor under the provisions of Paragraph 3 above.
14. Insurance.
a. The Contractor 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 Contractor pursuant to the terms of this Contract. Such insurance
shall be in addition to any other insurance reqmrements imposed by this contract or by law.
The Contractor shall not be relieved of any liability, claims, demands, or other obligations
assumed pursuant to the terms of this Contract 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. Contractor shall procure and maintain, and shall cause any subcontractor of
the Contractor to procure and maintain, the minimum insurance coverages listed in the
Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insurance
coverage, then the minimum coverage shall be as set forth below. Such coverage shall be
procured and maintained with forms and insurance acceptable to City. All coverage shall be
continuously maintained to cover all liability, claims, demands, and other obligations
assumed by the Contractor pursuant to the terms of this Contract. In the case of any claims-
made policy, the necessary retroactive dates and extended reporting periods shall be procured
to maintain such continuous coverage.
CC5-971.doc Page: 4
1. Workmen'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 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 Workmen's
Compensation requirements of this paragraph.
2. 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 policy shall be
applicable to all premises and operanons. The policy shall include coverage for bodily
injury, broad form property damage (including completed operations), personal injury
(including coverage for contractual and employee acrs), 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.
3. Comprehensive Automobile Liability insurance with minimum
combined single limits [or 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 Contractor's owned, hired
and non-owned vehicles assrgned to or used in performance of the servmes. The
policy shall contain a severability of interests provision. If the Contractor has no
owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each
employee of the Contractor providing services to the City under this contract.
c. Except for any Professional Liability insurance that may be required, the
policy or policies required above shall be endorsed to include the City of Aspen and the City
of Aspen's officers and employees as additional insureds. Every policy required above shall
be primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen, shall
be excess and not contributory insurance to that provided by Contractor. No additional
insured endorsement to the policy required above shall contain any exclusion for bodily
injury or property damage arising from completed operations. The Contractor shall be solely
responsible for any deductible losses under any policy required above.
d. The certificate of insurance provided by the City of Aspen shall be completed
by the Contractor's insurance agent as evidence that policies providing the required coverage,
conditions, and minimum limits are in full force and effect, and shall be reviewed and
approved by the City of Aspen prior to commencement of the contract. No other form of
certificate shall be used. The certificate shall identify this contract and shall provide that the
coverage 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 of Aspen.
CC5-971.doc Page: 5
e. In addition, these Certificates Of Insurance shall contain the following clauses:
Underwriters and issuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the above-described insurance. To the extent that the City's insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
insurers shall have no right of recovery or subrogation against the Contractor.
Underwriters and issuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all loSses
covered by the above-described insurance. To' the extent that the City's ~nsurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
insurers shall have no right of recovery or subrogation against the Contractor.
Underwriters and issuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the above-desCribed insurance. T° the extent that the City'S insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
~nsurers shall have no right of recovery or subrogation against the Contractor.
Underwriters and issuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the Parties that the inSurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the above-desCribed insUrance. To the extent' that the City's insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
insurers shall have no right of recovery or subrogation against the Contractor.
Underwriters and ~ssuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the above-described insurance. To the extent that the City's insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
insurers shall have no right of recovery or subrogation against the Contractor.
Underwriters and issuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the abOve-described insurance. To the extent that the City's insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
insurers shall have no right of recoverY or subrogation against the Contractor.
Underwriters and ~ssuers shall have no right of recovery or subrogation against tile
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the above-described insurance. To the extent that the City's insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
~nsurers shall have no right of recovery or subrogation against the
CC5-971.doc Page: 6
Contractor. Underwriters and issuers shall have no right of recovery or subrogation
against the City of Aspen, it being the intention of the parties that the insurance
policies so effected shall protect all parties and be primary coverage for any and all
losses covered by the above-described insurance. To the extent that the City's
insurer(s) may become liable for secondary or excess coverage, the City's
underwriters and insurers shall have no right of recovery or subrogation against the
Contractor.
The insurance companies issuing the policy or policies shall have no recourse against
the City of Aspen for payment of any premiums or for assessments under any form of
policy. The insurance companies issuing the policy or policies shall have no recourse
against the City of Aspen for payment Of any premiums or for assessments under any
form of policy. The insurance companies issuing the policy or policies shall have no
recourse against the City of Aspen for payment of any premiums or for assessments
under any form of policy. The insurance companies issuing the policy or policies shall
have no recourse against the City of Aspen for payment of any premiums or for
assessments under any form of policy. The insurance companies issuing the policy or
policies shall have no recourse against the City of Aspen for payment of any
premiums or for assessments under any form of policy. The insurance companies
issuing the policy or policies shall have no recourse against the City of Aspen for
payment of any premiums or for assessments under any form of policy. The insurance
companies issuing the policy or policies shall have no recourse against the City of
Aspen for payment of any premiums or for assessments under any form of policy. The
insurance companies issuing the policy or policies shall have no recourse against the
City of Aspen for payment of any premiums or for assessments under any form of
policy.
Any and all deductibles in the above-described insurance policies shall be assumed by
and be for the amount of, and at the sole risk of the Proposer. Any and all deductibles
in the above-described insurance policies shall be assumed by and be for the amount
of, and at the sole risk of the Proposer. Any and all deductibles in the above-described
insurance policies shall be assumed by and be for the amount of, and at the sole risk
of the Proposer. Any and all deductibles in the above-described insurance policies
shall be assumed by and be for the amount of, and at the sole risk of the Proposer.
Any and all deductibles in the above-described insurance policies shall be assumed by
and be for the amount of, and at the sole risk of the Proposer. Any and all deductibles
in the above-described insurance policies shall be assumed by and be for the amount
of, and at the sole risk of the Proposer. Any and all deductibles in the above-described
insurance policies shall be assumed by and be for the amount of, and at the sole risk
of the Proposer. Any and all deductibles in the above-described insurance policies shall
be assumed by and be for the amount of, and at the sole risk of the Proposer.
Location of operations shall be: "All operations and locations at which work in
connection with the referenced project is done."
CC5-971,doc Page: 7
Certificates of Insurance for all renewal policies shall be delivered to the Architect at
least fifteen (15) days prior to a policy's expiration date except for any policy expiring
on the expiration date of this Contract or thereafterl
e. Failure on the part of the Contractor to procure or maintain policies providing
the required coverage, 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. All moneys so paid by City shall be repaid by
Contractor to City upon demand, or City may offset the cost of the premiums against moneys
due to Contractor from City.
f. City reserves the right to request and receive a certified copy of any policy and
any endorsement thereto.
15. Damage or Destruction. If the Project is destroyed or damaged by any
accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or
vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid
for by City as extra work under Paragraph 8 above. If, however, the estimated cost of
replacement of the work already completed by Contractor exceeds twenty (20%) percent of
the insured sum set forth in Paragraph 14 above, City shall have the option to cancel this
Contract and, in such event, Contractor shall be paid the reasonable cost, including net
profit to Contractor in the amount of ten (10%) percem, of all work performed by
Contractor before such cancellation.
16. Notices. Any notice which any party is required or may desire to give to any
other party shall be in writing and may be personally deiivered oi'~ ~igen Or made by United
States mail addressed as follows:
To City:
Steve Barwick, City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
To Contractor:
Ty Foose, President
Monolithic Sculptures, Inc.
3240 Prairie, Suite 'B'
Boulder, Colorado 80301
subject to the right of either party to designate a different address for itself by notice
similarly given. AnY notice so given, delivered or made by United States mail, shall be
deemed to have been given the same day as transmitted by fax or delivered personally, one
day after consignment to overnight courier service such as Federal Express, or two days
CC5-971.doc Page: 8
after the deposit in the United States mail as registered or certified matter, addressed as
above provided, with postage thereon fully prepaid.
17. Inspections; Warranties.
(a) Contractor shall conduct an inspection of the Project prior to final acceptance of
the work with City.
(b) Contractor shall schedule and cause to be performed all corrective activities
necessitated as a result of any deficiencies noted on the final inspection prior to acceptance.
The costs of material and/or labor incurred in connection with such corrective activities
shall not be reimbursed or otherwise paid to Contractor,
(c) Contractor shall obtain, at City's expense, third party warranty contracts (to be
entered into by City).
18. Independent Contractor. It is expressly acknowledged and understood by
the parties that nothing in this Contract shall result in, or be construed as establishing an
employment relationship. The Contractor shall be, and shall perform as, an independent the
Contractor who agrees to use his best efforts ro provide the Work on behalf of the City. No
agent, employee, or servant of the Contractor shall be, or shall be deemed m be, the
employee, agent or servant of the City. The City is interested only in the results obtained
under the Contract Documents. The manner and means of conducting the Work are under the
sole control of the Contractor. None of the benefits provided by the City to its employees
including, but not limited to, worker's compensation insurance and unemployment insurance,
are available from the City to the employees, agents or servants of the Contractor. The
Contractor shall be solely and entirely responsible for its acts and for the ac[s of the
Contractor's agents, employees, servants and subcontractors during the performance of the
Contract.
THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE
ENTITLED TO WORKERS~ COMPENSATION BENEFITS AND SI-IALL BE
OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS
EARNED PURSUANT TO THE CONTRACT.
19. Assignment. This Contract is for the personal services of Contractor.
Contractor shall not transfer or assign this Contract or its rights and responsibilities under
this Contract nor subcontract to others its rights and responsibilities under this Contract,
and any attempt to do so shall be void and constitute a material breach of this Contract.
20. Successors and Assigns. Subject to paragraph 19, above, this Contract
shall be binding on, and shall inure to the benefit of, City and Contractor and their
respective successors and assigns.
CC5-971.do¢ Page: 9
21. Entire Contract. This Contract contains the entire Contract between City
and Contractor respecting the matters set forth herein and supersedes all prior Contracts
between City and Contractor respecting such matters.
22. Waivers. No waiver by City or Contractor of any default by the other or of
any eyent, circumstance or condition permitting either m terminate this Contract shall
constitute a waiver of any other default or other such event, circumstance or condition,
whether of the same or of any other nature or type and whether preceding, concurrent or
succeeding; and no failure or delay by either City or Contractor to exercise any right
arising by reason of any default by the other shall prevent the exercise of such right while
the defaulting party continues in default, and no wmver of any default shall operate as a
waiver of any other default or as a modification of this Contract.
23. Remedies Non-Exclusive. No remedy conferred on either party to this
Contract shall be exclusive of any other remedy herein or by law provided or permitted.
but each shall be cumulative and shall be in addition ro every other remedy.
24. Governing Law. This Contract shall be governed by, and construed in
accordance with, the laws of the State of Colorado. Venue for any action at law or equity
shall be Pitkin County.
25. Attorneys' Fees. If either parry to this Contract shall institute any action or
proceeding to enforce any right, remedy or provision contained in this Contract, the
prevailing parry in such action shall be entitled to receive its attorneys' fees in connection
with such action from the non-prevailing party.
26. Severability. Any provision in this Contract which is held to be
inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid without
affecting the remaining provisions, and to this end the provisions of this Contract are
declared to be severable.
27. Nondiscrimination. During the performance of this Contract, the Contractor
agrees as follows: The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, national or,gin, age, marital status, sexual
orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era
veteran. The Contractor will take affirmative action to insure that applicants are employed,
and that employees are treated during employment withom regard m their race, color,
religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged
person, or a disabled or Vier Nam era veteran. Such action shall include, but not be limited
to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. The Contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided setting forth the
provisions of this nondiscrimination clause.
CC5-971,do¢ Page: i0
28. Prohibited Interest. No member, officer, or employee of the City of Aspen,
Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in
this Contract or the proceeds thereof.
29. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict
of Interest:
a. The Contractor warrants that no person or selling agency has been employed
or retained to solicit or secure this Contract upon an Contract or understanding for a
commission, percentage, brokerage, or contingency fee, excepting bona fide employees or
bona fide established commercial or selling agencies maintained by the Contractor for the
purpose of securing business.
b. The Contractor agrees not m give any employee or former employee of the
City a gratuity or any offer of employment m connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program requiremem or a
purchase request, influencing the content of any specification or procurement standard,
rendering of 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 Contract or to any solicitation or proposal therefor.
c. It shall be a material breach of the Contract for any payment, gratuity, or offer
of employment to be made by or on behalf of a Subcontractor under a contract to the prime
Contractor or higher tier Subcontractor or any person associated therewith, as an inducement
for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any
means, any person employed under this Contract to give up any part of the compensation to
which he/she is otherwise entitled. The Contractor shall comply with all applicable local,
state and federal "anti-kickback" statutes or regulations.
30. Payments Subject to Annual Appropriations. If the contract awarded
extends beyond the calendar year, nothing herein shall be construed as an obligation by the
City beyond any amounts that may be, from time to time, appropriated by the City on an
annual basis. It is understood that paymem under any contract is conditional upon annual
appropriation of fimds by said governing body and that before providing services, the
Contractor, if it so requests, will be advised as to the status of funds appropriated for services
CC5-971.doc Page: i i
or materials and shall not be obligated to provide services or materials for which funds have not
been appropriated.
IN WITNESS WltEREOF, the parties agree hereto have executed this Contract For
Construction on the date first above written.
Title:
RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM:
Cit~E~g~'n-e~ng Dep~me~n'-t -/ C-~--7~Att~~ ,-- _ _
ATTESTED BY: CONTRACTOR:
Title:
rpomti?Ji~a_~
Note: Certification of Incorporation shall be executed if Contractor is a Co
partnership, the Contract shall be signed by a Principal and indicate t/tie. ~ ~ -.__
CERTIFICATE OF INCORPORATION
(To be completed if Contractor is a Corporation)
STATE OF ~----~,~,¢~,~ )
) ss.
COUNTY OF ,,~',~<~,'~ )
On this //, z~ day of ~a=c~,d~'~ ,2002, before
me appeared
c~. ~ //~/t¢,~/~./,,, .... to me personally
known, who, being by me first duly sworn, did say that s/he is
/~'E..r/,~.~ . of
/-'~,?'~.x~,4/--~-~/~ ~E~,¢,,~'~,~'~-u-,/~'~. , and that the
seal affixed to said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of its board
of directors, and said deponent acknowledged said instrument to be the free act and
deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first
above written.
JENN~ L. SEROOGY
~.~~ NOTARY PUBL:C
My Commissiofl Expires 4pril
My ~mmission expires: /~'/ / 4 ~