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HomeMy WebLinkAboutresolution.council.059-92 ~'.", ~c '\~ ~" ,W ~.!, '. RESOLUTION NO. 5,:? Series of 1992 A RESOLUTION APPROVING A PROFESSIONAL SERVICE AGREEMENT BETWEEN SCHMUESER GORDON MEYER INC. AND THE CITY OF ASPEN, COLORADO, FOR THE RENOVATIONS OF THE EAST WATER PLANT FOR THE CITY OF ASPEN, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a professional servIce agreement between Schmueser Gordon Meyer Inc. and the City of Aspen, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of Aspen hereby approves the professional services agreement between Schmueser Gordon Meyer Inc. and the City of Aspen, 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 L day O~92. ~ 7. [3~ John S. Bennett, 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 a meeting held on the day hereinabove stated. . // ~~~~ Kathry . Kocl( City Clerk resolute.sgm ~ . - 1- ~ ~. AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Schmueser Gordon Meyer, Inc. of Glenwood Springs, Colorado, ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scooe of Work. Professional shall perform in a competent and professional manner the Work as set forth in Professional's proposal dated October 9, 1992, entitled East Water Plant Rehabilitation Proposal for Design, Bid Documentation and Contract MaJiagement 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 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 the Schematic Design, Design Development, Construction Documents, and Bidding and Negotiation Phases shall be completed no later than January 25, 1993. 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 authoritites 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 compensate Professional in accordance with Article VI of the Standard Terms and Conditions for Professional Engineering Services Contracts at an hourly rate in accordance with the Estimated Fees set forth in Professional's Proposal, and other terms and conditions of this Agreement, the total sums not to exceed the following amounts for each Work activity listed: East Plant Rehabilitation Design .. p,....... Contract Administration............,......... Construction Observation .... ,...".' ......... Two Million Gallon Clearwell Baffling .... Filter Assessments .... on............ p'...... $48,000.00 12,000.00 20,000.00 6,600.00 9,000.00 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 from receipt of the Professional's billing, the City understanding of the disposition of the issue, Professional's invoice shall be for the period ending the 25th day of each month. The invoice should be received by the City's project engineer no later than the I st of each month. (It ~ei 0+. '>'''- ^ ~ i_ 4. Nan-Assignability. Both parties recognize that this contract is one far personal services and cannot be transferred, assigned, or sublet by either party without priar written consent of the other. Sub-Cantracting, if,autharized, shall nat relieve the Professianal of any of the respansibilities ar abligatians under this agreement. Professional shall be and remain solely respansible to the City for the acts, errors, amissions ar neglect of any subcantractars afficers, agents and employees, each of wham shall, fat this purpose be deemed to. be an agent ar employee af the Professianal to the extent of the subcontract. The City shall not be abligasted to. pay ar be liable far payment af any sums due which may be due to any sub-cantractor. 5. Terminatian. The Professional or the City may terminate this Agreement, withaut specifying the reason therefar, by giving natice, in writing, addressed to. the other party, specifying the effective date of the termination. No. fees shall be earned after the effective date af the terminatian. Upan any terminatian, all finished ar unfinished documents, data, studies, surveys, drawings, maps, models, photagraphs, reparts or ather material, prepared by the Professianal shall became thepropertyaftheCity.Natwithstanding the above,Professianalshall nat be relieved of any liability to the City far damages sustained by the City by virtue of any breach af this Agreement by the Professional, and the City may withhald any payments to the Professional far thepurpases af set-aff until such time as the exact amount af damages due the City fram the Professional may be determined. 6. Covenant Against Cantingent Fees. The Professional warrants that s/he has not been emplayed or retained any company or persan, other than a bona fide employee warking for the Prafessional, to salicit or secure this can tract, that s/he has nat paid or agreed to. pay any campany ar persan, ather than a bana fide employee, any fee, cammission, percentage, brokerage fee, gifts or any ather consideratian cantingent upon or resulting from the award or making af this contract. For a breach or violatian af this cantract withaut liability, ar in its discretion to. deduct from the cantract price ar cansideratian, or otherwise recover, the full amaunt of such fee, cammissian, percentage, brokerage fee, gift or cantingent fee. 7. Independent Contractar Status. It is expressly acknawledged and understoad 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 perfarm as, an independent Contractar who agrees to. use his or her best efforts to. provide the said services on behalf of the City. No. agent, emplayee, ar servant of Professional shall be, or ,shall be deemed to. be, the emplayee, agent ar servant af the City. City is interested only in the results obtained under this contract. 'The manner and means af canducting the work are under the sole control of Professional. Nane of the benefits provided by City to its emplayees including, but nat limited to., workers' campensatian insurance and unemployment insurance, are available from City to the emplayees, agents or servants, of Professianal. Professional shall be salely and entirely responsible for its acts and far the acts af Professianal's agents, emplayees, servants and subcantractors during the perfarmance of this contract. Professional shall indemnify City against all liability and loss in connectian with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions impased or required under unemplayment insurance, social security and income tax law, with respect to. Professianal and/or Professianal's employees engaged in the perfarmance of the services agreed to herein. 2 e ej' ,& \"" ~.:, ~ 8. Indemnificatio.n. Professional agrees to indemnify and hold harmless the City, its officers, emplo.yees, insurers, and self-insurance po.o.l, from and against all liability , claims, and demands, an account of injury, loss, or damage, including witho.ut limitation claims arising from bo.dily injury, perso.nal injury, sickness, disease, death, property loss or damage, or any ather lass o.f any kind whatso.ever, which arise out o.f o.r are in any manner co.nnected with this contract, if such injury, loss, or damage is caused in whale o.r in part by, or is claimed to be caused in whole or in part by, the act, omissio.n, erro.r, professio.nal erro.r, mistake, negligence, or other fault of the Professio.nal, any subcontracto.r of the Professional, o.r any officer, employee, representative, o.r agent of the Professio.nal or of any subco.ntractor o.f the Professio.nal, or which arises out o.f any workmen's co.mpensatio.n claim o.f any emplo.yee of the Professio.nal or o.f any emplo.yee o.f any subco.ntracto.r o.f the Professio.nal. The Professional agrees to. investigate, handle, respo.nd to., and to. provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the aptian o.f the City, agrees to. pay the City or reimburse the City for the defense costs incurred by the City in connectio.n with, any such liability, claims"ordemands. ThePro.fessio.nal,alsa agrees,to bear all other costs and expenses related thereto, including court casts and attarney fees, whether ar nat any such liability, claims, ar demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment af a court o.f campetent jurisdiction that such injury, loss, or damage was caused in whole at in part by the act, amission, o.r ather fault o.f the City, its officers, or its employees, the City shall reimburse the Professianal far the partian of the judgment attributable to. such act, omission, o.r ather fault of the City, its afficers, or emplayees. 9. Professional's Insurance. (a) Professianal agrees to procure and maintain, at its own expense, a palicy or palicies af insurance sufficient to. insure against all liability , claims, demands, and other abligations assumed by the Pro.fessianal pursuant to Sectio.n 6 above. Such insurance shall be in addition to. any ather insurance requirements impased by this contract ar by law. The Professional shall not be relieved af any liability, claims, demands, or other abligations assumed pursuant to. Section 6 above by reason o.f its failure to. procure ar maintain insurance, o.r 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 professianal subcantractors (Black & Veatch and The Design Group) of the Professional to procure and maintain, the minimum insurance coverages listed below, Such coverages shall be procured and maintained with farms and insurance acceptable to the City. All coverages shall be cantinuously maintained to cover all liability, claims, demands, and ather obligations assumed by the Professianal pursuant to Section 6 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be pracured to maintain such cantinuous caverage. (i) Workmen's Compensation insurance to caver obligatians impased by applicable laws far any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits af ONE HUNDRED THOUSAND DOLLARS ($100,000.00) far each accident, ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - palicy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each emplayee. Evidence o.f qualified self-insured status may be substituted for the Workmen's Compensatian requirements af this paragraph, 3 .' v', , ~~.. -' %\, ,,~ -@- \\\1" {~~.., (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 policy shall be applicable to all premises ap.d 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). The policy shall contain a severability of interests provision, (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, 'the requirements of this Section shall be met by each employee of the' Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above relating to Commercial General Liability 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 Professional 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 commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be cancelled, 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. 4 -- ., ~. ~e., \\ '<~ (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 CIRSA 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 coverages ,-, offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. II. Completeness of Ag:reement. It is expressly agreed that this Agreement together with the Contract Documents, including the City of Aspen Standard Terms and Conditions for Professional Engineering Services Contracts and Professionals Proposal, 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: Amy Margerum, City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Professional: Schmueser Gordon Meyer, Inc. 1001 Grand Avenue, Suite 2-E Glenwood Springs, Colorado 81601 Attn: Louis Meyer 13. Non-Discrimination: penalty. 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 ur,der 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 forebearance 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, 5 .' ' '~t '< tA \~. -. ", ! ~. "'~ 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. (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, superceded or extended except by appropriate written instrument fully. ,executedJ1.y_the~ _m m 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. 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. Dated: ///;;)../-1:;;, I I ATTESTED BY: CITY OF ASPEN, COLORADO: ~/.t~ ()L -7. (~AY~- By: 6 .'., , ~I <i~,,_ U :~-"'" l% " ~.. APPROVED AS TO FORM BY: ~,~:?//;/]J~ Waleragr.bid PROFESSIONAL: 'SCHMUESER GORDQN MEY~R, TNr By: ?;/~-%/~ 7