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HomeMy WebLinkAboutresolution.council.069-03 RESOLUTION (Series of 2003) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND ASLAN CONSTRUCTION SETTING FORTH THE TERMS AND CONDITIONS REGARDING INSULATION OF CLEARWELL AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Aslan Construction, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the. City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Aslan Construction regarding insulation of clearwell, 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 contract on behalf of the City of Aspen. Helen KaliffKl~tderud,Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at Kathr~ S'.~-~o~cfi, City'C~terk SERVICE AGREEMENT THIS AG ~R~,EM.,E, NT made thisbe_ day of ~ , 20tp~, by and between the City of Aspen ( City ) and the Contractor identified he~inbelow. WlTNESSETH. that whereas the City wishes to purchase the services described hereinbelow and Contractor wishes to provide said services to the City as specified herein. NOW THEREFORE. in consideration of the following covenants, the parties agree as follows: CONTRACTOR NA~E :Asl~n Construction Inc. ADD'ESS: 640 E Sisenhower. Suite 8, Loveland, CO 80837 DESCRIPTION OF SERVICE DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED Substantial :ompJetlon of work is EO De performed ~y Nove.n~bei 1. 2003. DESCRIPTION OF AMOUNT. METHOD OR MANNER OF COMPENSATION Paymen~ will be received upon completion of the project. ~otai 2os~ of the work 15 not uc exceed S128,70© uompensaslon fox the work will be provided thrDu~h a City of Aspen purchase order. AMENDMENTS TO GENERAL CONDITIONS The parties acknowledge and understand that this Service Agreemem is, except as specifically amended heminabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which ~s appended hereto as Appendix 'A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. City of A~ Contractor:,/~ / ~ ,. Serv-981 .doc 9 EXHIBIT "A" CITY OF ASPEN GENERAL CONDITIONS FOR SERVICE AGREEMENTS These General Conditions have been prepared by the City of Aspen to be incorporated by reference into Service Agreements entered into between service providers ("Contractor") and the City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the Service Agreement customarily used by the City of Aspen to contract for services. A change m one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed ro by the Contractor and the City shall be specifically noted on the Service Agreement. 1. Completion. Contractor shall con~mence the provision of services as described in the Service Agreement in a timely manner. Upon request of the City, Contractor shall submit, for the City's approval, a schedule for the performance of Contractor's services which shall be adjusted as required. This schedule, when approved by the City, shall not, except for reasonable cause, be altered by the Contractor. 2. Payment. In consideration of the services provided, City shall pay Contractor the amounts set forth in the Service Agreement. Contractor shall submit, in timely fashion, invoices for services performed. The City shall review such invoices and, if they are considered incorrect or untimely~ the City shall review the matter with Contractor within ten days from receipt of the Contractor's billing. Contractor's invoice shall be for the period ending the last day of each month and submitted to the City no later than the 5th day of each month. 3. 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 Contractor of any of the responsibilkies or obligations under this agreement. Contractor shall be and remain solely responsible to the City for the acts, errors, orrdssions or neglect of any subcontractor's officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Contractor to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sirras due which may be due to any subcontractor unless agreed to in writing beforehand by the City. 4. Termination. The Contractor or the City may terminate this Agreement upon thirty (30) days notice, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. 'The City shall have the fight to terminate the Service Agreement upon three (3) days notice if Contractor fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7, 10, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agreement, City may terminate the Service Agreement with ten (10) days prior notice to cure and failure by Contractor to so cure. No compensation shall be earned after the effective date of the termination. Notwithstanding the above, Contractor 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 Contractor, and the City may withhold any payments to the Contractor for the purposes of set-off until such time as the exact amount of damages due the City from the Contractor may be determined. 5. Covenant A~ainst Contingent Fees. The Contractor warrants that s/he has not been employed or retained any company or person, other than a bona 5de employee working for the Contractor, to solicit or secure this contract, that s/he has not paid or ageed 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 contt'act. 6. Equipment, Materials and Supplies. Urdess otherwise agreed to by the City, Contractor shall acquire, provide, maintain, and repair at Contractor's expense such equipment, materials, supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with the Service Agreement. 7. Contract Monitoring. Contractor agrees to allow City to reasonably monitor the services to be provided in accordance with the Service Agreement. 8. 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. Contractor 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 Contractor 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 Contractor. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Contractor. Contractor shall he solely and entirely responsible for its acts and for the acts of Contractor's agents, employees, servants and subcontractors during the performance of this contract. Contractor shall indeun~ify 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 Contractor and/or Contractor's employees engaged in the performance of the services agreed to herein. 9. Indemnification. Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Service Agreement, if such injury, loss, or damage is caused in whole or in part by, or is chin/ed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or wl~ich arises out of any workmen's compensation claim of any employee of the Contractor or of any employee of any subcontractor of the Contractor. The Contractor agrees to investigate, handle, respond to. and ro provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor. or m the option of the City, agrees ro pay the City or reimburse the City for the defense costs incurred by the City in cormection with, any such liability, claims, or demands. The Contractor 'also agrees ro bear ail other costs and expenses related thereto, including court costs and attorney fees. whether or nor any such liability, claims. or demands alleged are groundless, false, or fraudulent. 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 Contractor for the portion of the judgment attributable to such act. omission, or other fault of the City, its officers, or employees. i0. Contractor's Insurance. (a) Comracror agrees ro procure and maintain, m its own expense, a policy or policies of insurance sufficient ro insure against all liability, claims. demands, and other obligations assumed by the Contractor pursuant to Section 9 above. Such insurance shall be in addition to any other insurance requirements imposed by the Service Agreement or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9 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) Contractor shall procure and maintain Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under the Service Agreement, 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 lirnit, 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. (c) If the Service Agreement requires any insurance in addition to that referenced above at subsections (a) and (b), or a particular type of coverage, Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages referenced in the Service Agreement. Ail insurance 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 Contractor pursuant to Section 9 above. In the case of any claimk-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (d) 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 Contractor. No addkional insured endorsement to the policies 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. (e) The certificate of insurance provided by the City shall be completed by the Contractor'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 commencement of the contract. No other form of certificate shall be used. The certificate shall identify the Service Agreemem and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (303 days prior written notice has been given to the City. (f) Failure on the part of the Contractor to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may terminate the Service Agreement as provided by Section 4 above, or ar its discretion City may procure or renew any such policy or any extended reporting period thereto - and may pay any and ail premiums in connection therewith, and all monies so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums agmnst momes due to Contractor from City. (g) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (h) The parties hereto understand and agree that City is relying on. and does nor waive or intend m 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 protection provided by the Colorado Governmental Irmnunity Act. Section 24-i0-101 er seq., C.R.S.. as from time to time amended, or otherwise available to City, its officers, or its employees. 11. ~ity's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency 7CIRSA) and as such participates in the CtRSA Properry/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal business hours. Cky makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Contractor reasonable notice of any changes m ~rs membership or participation in CIRSA. 12. Waiver of Presumption. The. Service 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 parry based on any alleged unequal status of the parties in the negotiation, review or drafting of the Service Agreement. 13. Certification Regardin~ Debarment, Suspension. [neli~ibility, and Voluntary Exclusion. Contractor certifies, by acceptance of the Service 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 this statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. i4. Warranties A~ainst Contingent Fees. Gratuities. Kickbacks and Conflicts of Interest. Contractor 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 contingem fee. excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. Contractor agrees nor ro give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommen- dation, preparation of any parr 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 therefor. Contractor represents that no official, officer, employee or representative of the City during the term of the Service Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of the Service Agreement. In addkion to other emedies it amy have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel the Service Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Contractor; vendor, or sub-contractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the · value of anything transferred or received by the Contractor; and 4. Recover such value from the offending parties. i5. Termination for Default or for Convenience of Cit~. The services contemplated by the Service 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. 16. 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 the Service Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the Service Agreement shall be contingent upon the availability of those ~bmds for payment pursuant ro the terms of the Service Agreement. 17. CiW Council Approval. If the Service Agreement requires the City to pay an amount of money in excess of $25.000.00 it shaI1 not be deemed valid until it has been approved by the City Council of the City of Aspen. 18. Notices. Any written notices as called for herein may be hand delivered or mailed by certified mail. return receipt requested ro the respective person or address listed for the Contractor in the Service Agreement. 19. Non-Discrimination: penalty. No discrimination because of race. color, creed· sex. marital stares, affectional or sexual orientation, family responsibility, national or,gm, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Contractor agrees to meet all of the requirements of City's municipal code. Section 13- 98, pertaining to non-discrimination in employment. 20. City of Aspen Procurement Code. Notwithstanding anything to the contrary contained herein or in the Contract Documents_ the Service Agreement shall be subject ro the City of Aspen Procurement Code. Chapter 3 of the Aspen Municipal Code. 21. Coml~liance With All Laws and Reaulations. Contractor shall give all notices and comply with ail laws, regulations, and ordinances applicable to the provision of the services contemplated by the Service Agreement. Contractor shall obtain all necessary business licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons engaged in business within the City limits. 22. 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 the Service 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 Contractor to which the same may apply and, until complete performance by Contractor of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under the Service Agreement or by law despite any such forbearance or indulgence. 23. Execution of Service A_~reement bv City. The Service Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, the Service Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly authorized official in his or her absence). 24. General Terms. (a) It is agreed that neither the Service 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 the Service 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) The Service Agreement shall be governed by the laws of the State of Colorado as from time to time in effect.