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HomeMy WebLinkAboutresolution.council.053-97 e RESOLUTION NO. 5?J Series of 1997 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND ENERGY & RESOURCE CONSULTING GROUP, LLC, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT(S) ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Professional Services Agreement between the City of Aspen, Colorado and Energy & Resource Consulting Group, LLC, a copy of which contract is annexed hereto and made a part thereof. NOW, WHEREFORE, 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 Professional Services Agreement between the City of Aspen, Colorado, and Energy & Resource Consulting Group, LLC, 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. Dated: ~/1 t! () ,1997. ~ 13~-- John S. Bennett, Mayor e e 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 h;f 1997, Kathryn S. och, City Clerk . . e . . AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Energy & Resource Consulting Group, LLC, (nprofessional"). 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 in that certain letter dated May 15,1997, with appended Scope of Work, attached hereto as Exhibit "A" and by this reference incorporated herein. 2. Completion. Professional shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than December 31, 1997. 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, Upon submission of monthly invoices for services furnished, City shall pay Professional at the Professional's offices in Denver, Colorado, an amount equal to the actual hours of service furnished and the rates listed in Exhibit 1, or as governed by any supplement(s) attached hereto, The rates listed in Exhibit 1 are subject to adjustment on January 1, 1998, and each succeeding year to reflect changes in rates as officially established by Professional's Board of Directors. City will reimburse the Professional each month, as cost, for all out of pocket expenses directly chargeable to the Work covered by this Agreement. Such out of pocket costs will include items such as reproduction, printing, postage, delivery and shipping, telephone, facsimile, airfare, hotels, meals and rental vehicles utilized in the prosecution of the professional services detailed herein. 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 shall, 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 payor be liable for payment of any sums due which may be due to any sub-contractor. e . . 5. Termination. The Professional or Ihe City may terminate !his Agreement, without specifying the reason Iherefor, by giving notice, in writing, addressed to Ihe oIher party, specifying the effective date of Ihe termination. No fees shall be earned after Ihe effective date of Ihe termination. Upon any termination, all fInished or unfmished documents, data, sludies, surveys, drawings, maps, models, photographs, reports or oIher material prepared by Ihe Professional shall become the property of the City. NotwiIhstanding 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 !his Agreement by the Professional, and Ihe City may wiIhhold any payments to Ihe Professional for Ihe 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 been employed or retained any company or person, other Ihan a bona fide employee working for the Professional, to solicit or secure !his contract, Ihat 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 oIher consideration contingent upon or resulting from the award or making of !his contract. For a breach or violation of !his contract without liability, or in its discretion to deduct from Ihe contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 7, Independent Contractor Stalus. It is expressly acknowledged and understood by Ihe parties that nothing contained in !his 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 Ihe City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, Ihe employee, agent or servant of the City. City is interested only in Ihe results obtained under !his contract. The manner and means of conducting Ihe work are under Ihe sole control of Professional. None of the benefIts provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to Ihe 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 !his contract. Professional shall indemnify City against all liability and loss in connection wiIh, 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, wiIh 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 from bodily injury, personal injury, sickness, disease, deaIh, property loss or damage, or any oIher loss of any kind whatsoever, which arise 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, Ihe act, omission, error, professional error, mistake, negligence, 2 e . .\ ", 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, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the Ciry for the defense costs incurred by the City in connection with, any such liability, claims, or demands. The Professional also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. If it is determined by the [mal 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 all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law, The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 6 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) 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. (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 and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage 3 e . . 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 wiIh minimum combined single limits for bodily injury and property damage of not less Ihan ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate wiIh respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of Ihe Scope of Work, The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, Ihe requirements of this Section shall be met by each employee of Ihe Professional providing services to Ihe 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 Ihe 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 Ihe City, shall be excess and not contributory insurance to Ihat provided by Professional. No additional insured endorsement to Ihe 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 Ihe City shall be completed by the Professional's insurance agent as evidence Ihat policies providing Ihe required coverages, condi- tions, and minimum limits are in full force and effect, and shall be reviewed and approved by Ihe City prior to commencement of Ihe contract. No oIher form of certificate shall be used. The certificate shall identify this contract and shall provide that Ihe coverages afforded under Ihe 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 Ihe 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 Ihe cost of Ihe premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 4 - . . (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, 11. Completeness of Agreement. It is expressly agreed that this agreement contains the en.tire 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: ERG Consulting Group Attn. Philip J. Movish 4643 South Ulster St. Denver, CO 80237-2869 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 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, 5 e . . the Cily 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, N otwith- standing anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the Cily 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, 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 validily, legality or enforceability of any otller 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: g/-IH::t- I I ATTESTED BY: CITY OF ASPEN, COLORADO: ~J~ By: j..L..- 7~~ V 6 e . . WITNESSED BY: APPROVED AS TO FORM BY: agrprof.bid - Version: 4/93 PROFESSIONAL: By: 7 . ';. " e . ." Cc EXHIBIT A ENERGY & RESOURCE CONSULTING GROUP, LLC FIRST SUPPLEMENT TO PROFESSIONAL SERVICES AGREEMENT This First Supplement to the June 17, 1996, Professional Services Agreement ("Agreement") between SVBK CONSULTING GROUP, INC. (now ENERGY & ReSOURCE CONSULTING GROUP, LLC, hereinafter the "Consultant") and the City of Aspen, Colorado (hereinafter the "Client" or "City") is made and entered into this 15th day of May, 1997. All provisions of the Agreement remain in effect except as specifically revised herein. 1. SCOPE OF WORK The Scope of Work, as provided for in Section 1 shall be expanded in accordance with Task 14 of Exhibit A of the Agreement entitled "Optional Services", The following scope of work for additional services is to be provided by the Consultant: A. Provide consulting assistance to the City, its local counsel and its special Washington, DC counsel in the valuation, examination and potential acquisition of Holy Cross Electric Association, Inc.' s ("HCEA") electric utility properties located within the City as may be approved from time to time by the City Manager Or City Attorney, Such services may include, but not be limited to, the following: 1. Provision of assistance in negotiations with HCEA. 2. Provision of assistance to the City's special counsel in the development, analysis and evaluation of any stranded cost claims that HCEA may initiate. 3. Provision of support to the City's special counsel with regard to any proceeding before the Federal Energy Regulatory Commission regarding any HCEA stranded cost claim, 4. Development of an appraisal on behalf of the City in respect to HCEA's electric utility properties located within the City in support of negotiations with HCEA and/or the City's initiation of a condemnation proceeding for acquisition purposes in a court of competent jurisdiction. 5. Sponsorship of expert testimony before courts and regulatory bodies in respect to the City's acquisition of HCEA' s electric utility properties. 6. Preparation of preliminary electrical distribution designs necessary to integrate acquired HCEA facilities with the City electric system. 7. Attendance at meetings with City management and staff, the City's local and special counsels, City Council work sessions, City public meetings, and meetings and negotiating sessions with HCEA as directed by the City manager or City Attorney, B. Provide general consulting assistance to the City in matters relating to its evaluation, examination of any related franchise matters between the City and HCEA, as may be required from time to time, under the direction of the City Manager or City Attorney. ....~.....~ '-',j.,t""l .-.~.-. I rw IC'. I~ lC ~T I WLI ..... ~. ~- . . FIRST SUPPLEMENT TO JUNE 17, 1996 AGREEMENT Page 2 3. PAYMENT The entire Section 3 of the Agreement entitled "Payment" shall be deleted and replaced in its entirety as follows: "Upon submission of monthly invoices for services furnished, the Client shall pay the Consultant at the Consultant's offices in Denver, Colorado, an amount equal to the actual hours of service furnished and the rates listed in Exhibit I, or as governed by any Supplement(s) attached hereto, The rates listed in Exhibit I are subject to adjustment on January 1, 1998 and each succeeding year to reflect changes in rates as officially established by the Consultant's Board of Directors. The Client will reimburse the Consultant each month, as cost, for all out-of-pocket expenses directly chargeable to the work covered by this Agreement. Such out-of-pocket costs will include items such as reproduction, printing, postage, delivery and shipping, telephone, facsimile, airfare, hotels, meals and rental vehicles utilized in the prosection of the professional services in detailed herein." ACCEPTED on behalf of the City of Aspen, Colorado: By: aL.-r (?~- Amy Margen!: - - . Its: City Manager ENERGY & RESOURCE CONSULTING GROUP, LLC Vumbaco anaging Principal C'O.-J C'7CI?I C'hQ C'I?IC' 1.1I-1)C'. JI?I J(:... or 11--11.1 '. e . . I!:NJ;:RCV & RESOURCE CONSULTlNC GROUP, LLC EXHIBIT I The following are the Management Consulting Professional Service Rates in effect for Energy & Resource Consulting Group during calendar year 1997. MA>NA>GEMENT CONSULTING PaOFESSIONA>L SERVICE RATES Position Range per Hour Managing Principal $145. $185 Principal $145 - $175 Executive Consultant & Associates $130 - $170 Supervising Consultant $95 - $150 Supervising Analyst/Engineer/Accountant $75 - $115 Senior AnalystlEngineer/ Accountant $60 - $105 Analyst/Engineer/ Accountant $55 - $85 Assistant Analyst/Engineer/ Accountant $35 - $65 Office Support Services $30 - $45 q..... ~?CIA j:'t?Q j:'17I~ l.n-IQ~!)17I )-=... ClT 11..11.1