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HomeMy WebLinkAboutresolution.council.051-93 RESOLUTION NO. Series of 1993 A RESOLUTION APPROVING A PROFESSIONAL SERVICES AGREEMENT BETWEEN BANNER & ASSOCIATES AND THE CITY OF ASPEN, COLORADO, FOR PROFESSIONAL CONSULTATION SERVICES RELATING TO THE BUTTERMILK INTERCEPT LOT 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 services agreement between Banner & Associates 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 the City of Aspen hereby approves that professional services agreement between Banner & Associates 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 ~ day of ~ , 1993. l~6hn 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. Koch, City Clerk MEMORANDUM Mayor and city Council THRU: Amy Margerum, City Manager~_. ' FROM: Diane Moore, City Planning Director ~ DATE: July 12, 1993 RE: Consent Agenda: Request for Contingency Funds - Contract for Professional Services bLand Use Application for a Temporary Intercept Lot at Buttermilk on the Stapleton Property SUMMARY: Staff is requesting $6,000.00 from Council contingency fund to pay for a portion of the consultants fees for the land use application for the Buttermilk intercept lot. Staff has placed the Agreement for Professional Services between Banner Associates, Inc. and the City of Aspen on the consent agenda for Council's review. Attached to the Agreement for Professional Services is the scope of work for the land use application for the temporary intercept lot on the Stapleton property. This item has been discussed with Council several times and Council has asked staff to proceed with the preparation of the land use application for this property. BACKGROUND: The construction of an intercept lot at this location has been discussed as a component on the Snowmass to Aspen Transportation and the Aspen Area Community Plan. The Draft Final Environmental Impact Statement for SH 82 from Basalt to Buttermilk also recommends the utilization of an intercept lot in this vicinity. An intercept lot at this location is an integral component of a comprehensive transportation system for the upper valley. CURRENT ISSUES: There are several issues regarding the Stapleton intercept lot that will be addressed as soon as possible: 1) There have been conceptual discussions between Amy Margerum, the Aspen Ski Company (ASC), Hines Interests and John McBride regarding the cost sharing for the land use application. The parties conceptually agreed to the following cost allocations: - Aspen Ski Company: 30% ($6,000) - Hines Interests: 30% ($6,000) - City of Aspen: 30% ($6,000) - John McBride: 10% ($2,000) (TOSV has declined to share costs) TOTAL $20,000.00 Amy will outline, in writing, the proposed cost allocations of the fees for the land use application for the above parties and request their confirmation and agreement of the cost sharing formula. The City should assume that their share of the application fees will total $6,000.00. If this figure is revised, then staff will present the revised figure to Council for approval. 2) Staff and the Aspen Ski Company are currently preparing a lease agreement with the Stapleton'~ for utilization of the property as an intercept lot. The lease agreement will be forthcoming and will be reviewed and approved by Council. The general terms (subject to change) of the agreement include the following: * Lease term: 3 years * Use of 24 acres for surface parking lot *Rezoning to Public zone district, GMQS Exemption, Special Review and Scenic Foreground Review. Lease will also contain a provision that the areas to be rezoned shall be owned by or under long-term lease to such agencies and the zone district shall lapse on the sale or lease of such lands to other than another eligible public agency. ~ Lease could be by Stapleton terminated if he accepts and closes the sale of the 24 acres to a third party. Lease could be terminated by lessee after giving 6 months prior written notice of intent to cancel lease. * Lessee would have a first right of refusal to match a bonafide offer f~m a third party. * Lease would not become effective until the city receives land use approval from the county, or any other required entities, for use as a parking lot. 3) The City needs to formally request waiver of the Planning Dept. land use review fees from the Board of County Commissioners. The $20,000.00 fee for the land use application does not include the Planning land use review fees. The Planning review fees could range from $3,000 to $4,000. 4) Staff will not be pursuing the utilization of the City Golf Course Parking lot as an alternative intercept lot. Presently, the intersection with SH 82 and the Truscott/golf course parking lot is substandard. When Truscott Place was approved, the Housing Authority (through the access permit) was to have made improvements to the intersection. These improvements were postponed with the thought that the improvements would be incorporated into the SH!82 widening. A new use, such as an intercept lot, would be subject to a new permit with the likelihood of substantial improvementson SH 82 to accomodate turning movements and bus activities. Additionally, the Consultant has pointed out that there are safety issues associated with this location. RECOMMENDATION: Staff recommends that Council approve $6,000.00 from their contingency .fund to pay for a portion of the Consultant's fees for the Buttermilk intercept lot land use application. Approval of the consent agenda constitutes approval of this request. AGRI~EMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Banner Associates, Inc., Colorado ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence.work immediately upon receipt ora 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 in accordance with the schedule contained in the Scope of Work. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional *ii ~O~Ooo ~ .Professionalshallsubmit,intimely 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 ~onth. The invoice should be received by the City's project engineer no later than the 1st of each month. 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 pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination. The Professional or the City may terminate this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional shall become the property of the City. Notwithstanding the above, Professional shall be relieved of to the City for damages sustained by the City by virtue of any not any liability breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 6. Covenant Against Contingent Fees. The Professional warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employed, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. For a breach or violation of this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or cont!ngent fee. 7. 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. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed tO be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claimS, and demands, on account of injury, loss, or damage, including without limitation claims arising 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 contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional erro.r, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee o£ 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 City 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 final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professiohal 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 maln~tain insurance in sufficient amounts, d~ration, or types. (la) 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 mairitain such continuous coverage. (i) Wortcmen's Compenxation 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 ail premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($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 shall be endorsed to include the City and tlie 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 ~;esponsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, condi- tions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to 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 canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any 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. (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 protection 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 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 m~iled by certified mail return receipt requested, to: City: Professional: Amy Margerum, City Manager Bob D,aniels City of Aspen Banner Associates, Inc. 130 South Galena Street 605 E. Main Street Aspen, Colorado 81611 Aspen, Colorado 81611 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 Go non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement*or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith- standing anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official ~n 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 validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand thgt 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 bi 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: ATTESTED BY: CITY OF ASPEN, COLORADO: By: BANNER ASSOCIATES, INC. By: APPROVED AS TO FORM BY: agrprof,bid - Version: 4/93 EXHIBIT A SCOPE OF WORK LAND USE APPLICATION FOR A TEMPORARY INTERCEPT LOT AT BUTTERMILK ON THE STAPLETON PROPERTY Overview of Project: Work with the City Manager and City/County Plonnln§ Office to submit a land use application to Pitkin County for a temporary intercept lot on the Stapleton Property near Buttermilk. The City Manager will be responsible for ensuring consensus at key steps along the way with those parties joining in the costs of the land use application (the Aspen Ski Company, Gerald Hines and John McBride). Background and Description/Need for Pro|ect: The City of Aspen, Pitkin County and Snowmass Village have been meeting for the past year to coordinate and plan for transportation needs in the upper valley. The Snowmass to Aspen Transportation Joint Resolution calls for an intereept/park and ride lot in the vicinity of the airport/Buttermilk parking lot. The City and County's long range plan (Aspen Area Community Plan) also calls for a park and ride lot to accommodate the goal of reducing traffic coming into the City. The State Implementation Plan for PM-10 air pollution anticipates a park and ride lot to accommodate displaced cars after the implementation of paid parking and residential parking permits. The Draft Final Environmental Impact Statement for Highway 82 is recommending an intercept lot and modal shift in the Buttermilk/airport area which is necessary to meet federally mandated Clean Air Act conformity requirements for an improved highway. Proposed Tasks: 1) Banner Associates, Inc. (hereinafter termed Consultant) shah provide engineering surveying and project coordination services with their own employees for this project. The Consultant shall (with the approval of the City of Aspen) also contract other project related services to Sub-Consultants as necessary to provide technical expertise for the project. 2) The City of Aspen (hereinafter termed Owner) shah provide technical assistance and review relative to the land use application. The Owner shah be responsible for acting as a liaison with other public and private entities associated with the project° The Owner shah be responsible for scheduling and coordinating with other governmental agencies. 3) Presentations for the purpose of obt~inln§ agency or governmental approvals shah be made by the Owner. The Consultant and Sub-Consultants shah be present at such presentations to provide technical support and/or assistance. 4) Consultant shah coordinate with CDOT, Ski Company, RFTA, Maroon Creek Ranch project and the County to determine design for ingress/egress to the property. Consultant shall also prepare access permit for submittal to Pitkin County. 5) The Consultant shah contract with the following Sub-Consultants to provide technical assistance with the preparation of the land use application: a) The Stevens Group, Inc. will prepare the site plan, landscape plan and text of the application for submittal to Pitkin County. b) Earth Resources Investigations, Inc. will provide technical information as to existing wetlands or other hydrology that could affect the land use approval process. c) Aspen Title Company will provide title information on the parcel and a list of adjacent owners. The Owner shah reimburse the Consultant for expenses incurred by those Sub-Consultants described in (b) and (c) above. 6) Other Sub-Consultants deemed necessary to provide technical expertise shah contract directly with the Owner and shah be required to coordinate their services with the Consultant. 7) The Consultant (and the Sub-Consultants) shah prepare a land use application for submittal to Pitkin County for Rezoning to Public Zone District, GMQS Exemption, Special Review and Scenic Foreground Review. Note in the application that a Master Plan for the property will be accomplished in concert with the CDOT EIS from Buttermilk to Aspen and with a fLxed guideway system from Aspen to the airport to Snowmass. (This Master Plan will not be accomplished as part of this scope of work but should be referenced and a commitment to do so should be included in the application. 8) Drawings, Surveys, Topographic Mapping, Exhibits, Plans and other pertinent aspects of the application will be prepared by the Consultant and/or Sub- Consultants. 9) The Consultant shah be available for a maximum of 10 meetings to coordinate and present the application, with the Owner, to public and private entities. 10) Owner and Consultant will present draft land use application to the Snowmass to Aspen Transportation Group after consultation with City Manager, County Manager, Snowmass Manager, Bob Maynard, Gerald Hines and John McBride° 11) The Consultant and Sub-Consultant shah not accept responsibility or liability for non-approval of the projeet. 12) Construction drawings, bid documents and construction management/administration services for the project are not included. 13) The Consultant shah review input received at public hearings and make adjustments as necessary throughout the land use approval process° 14) Should there be a change in Scope of Work or requirements by CDOT, Pitkln County, private entities and/or the Owner, the Consultant reserves the right to renegotiate and/or modify the Fee for this project. Schedule: Sign Contract July 6, 1993 Completion of Land Use Application August 9, 1993 Review with Group August 12, 1993 Submit Land Use Application Aug~st 16, 1993 Planning Commission Hearings Sept - Oct BOCC Hearings Oct - Nov Costs: The total not-to-exceed cost for the above scope of work will be $20,000. Actual costs will be itemized and submitted monthly to the City of Aspen. Any work over and above that noted in the scope of work as outlined above will be agreed upon through a change order to the contract. The Owner will be billed at the Consultant's Standard Hourly rate upto this total amount. Invoices shall be submitted no later than the 20th day of the month after the end of the previous billing period. Payment shall be made no later than the 15th day of the following month. The $20,000.00 fee for Consultant servi6es for the preparation of the land use application does not include the Pl~nnlng Department land use review fees.