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HomeMy WebLinkAboutresolution.council.015-04RESOLUTION # (Series of 2004) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND VELOCITY CONSTRUCTORS, SETTING FORTH THE TERMS AND CONDITIONS REGARDING HYDRAULIC ACTUATOR REPLACEMENT 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 Velocity Constructors, 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 Velocity Constructors regarding hydraulic actuators replacement, 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: .~,._~ /~ 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 March 8, 2004. Kat~fr~n S. Koch, City Clerk 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 in one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed to by the Contractor and the City shall .be specifically noted on the Service Agreement. 1. Completion. Contractor shall commence 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 responsibilities or obligations under this agreement. Contractor shall be and remain solely responsible to the City for the acts, errors, omissions 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 sums 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 right 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 Against Contingent Fees. The Contractor warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Contractor, 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 empl'oyee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 6. Equipment, Materials and Supplies. Unless 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 ~qtatus. 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 0nly 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 be 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 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 requ/red 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 o~er 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 claimed 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 which 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 to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, 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 Contractor 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 Contractor for the portion of the jUdgment attributable to such act, omission, or other fault of the City, its officers, or employees. 10. Contractor's Insurance. (a) Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the ContractOr pursuant to 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 maintaih 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 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. (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. All 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 claims-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 additional 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 Agreement 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. (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 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 Contractor to City upon demand, or City may offset the cost of the premiums against monies due to Contractor from City. (g) City reserves the right ro 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 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 irs employees. 11. City'.q lnm~rance. 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 Contractor for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Contractor reasonable notice of any changes in its 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 party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Service Agreement. 13. Certification Regarding DeBarment: Suspension: Ineligibility, and Voluntary E×chmion. 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. 14. Warranties Against Contingent Fees: Gratuities: KickBacks anct Conflicts of Interest. Contractor warrants thai no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. Contractor agrees not to 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 part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal 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 addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have 'the right to: 2. 3. 4. Cancel the Service Agreement without any liability by the City; Debar or suspend the offending parties from being a Contractor, vendor, or sub-contractor under City contracts; Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor; and Recover such value from the offending parties. 15. Termination for Default or for Convenience of Ci~. 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 funds for payment pursuant to the terms of the Service Agreement. 17. City Council Approval. If the Service Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 18. Notices. Any written notices as called for herein may be hand delivered or mailed by certified mail, return .receipt requested to the respective person or address listed for the Contractor in the Service Agreement. 19. Non-Discrimination; penal~. 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. Contractor agrees to meet all of the requirements of City's municipal code, Section 13- 98, pertaining to non-discrimination in employment. 20. CiW of Aspen Procurement Code. Notwithstandi'ng anything to the contrary contained herein or in the Contract Documents, the Service Agreement shall be subject to the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code. 21. Compliance With All T,aws and Regulations. Contractor shall give all notices and comply with all 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 gerviee Agreement by CiU~. 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 rnade 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. SERVICE AGREEMENT THIS AGREEMENT made this day of March, 2004, by and between the City of Aspen ("City") and the Contractor identified hereinbelow. .WITNESSETH, 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 NAMe: Velocity Constructors ADDRESS: 9848 W.Girton Drive Lakewood, CO 80227 CONTACT PERSON: Grant Dunkle PHONE NUMBERS HOME: SOCIAL SECURITY NUMBER OR FEDERAL I.D. NUMBER: 3644-291 WORK: 303-984-7800 DESCRIPTION OF SERVICE Service to be provided is outlined in the Castle Creek Water Treatmen= Plant Hydraulic Actuators Replacement, McLaughlin Rincon Engineering contract 03-03u13 including addendum, City of Aspen projec= # 2004-023. DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION Payment will be received upon completion of the project. Total cost of the work is not ko exceed $206,950.00. Compensation for the work will be provided through a City of Aspen purchase order Please invoice using City's Purchase Order Number: AMENDMENTS TO GENERAL CONDITIONS The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is 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 By: Serv-981.doc INSTRUCTIONS FOR COMPLETING SERVICE AGREEMENT CONTRACTOR: Include the full name of the Contractor, including the trade or business name, if any. (I.e. John P. Worcester d/b/a Worcester Fly Fishing, Inc.) If the Contractor has a Federal Identification Number, that number should be used; otherwise, use the Social Security number of the individual Contractor. This information may be needed to issue anlRS form 1099 for certain independent contractors. DESCRIPTION OF SERVICE: Describe in detail all service(s) which Contractor is being hired to perform pursuant to this Agreement. Add any matter which if the Contractor failed to perform would constitute a breach of the Agreement. (Location of services, qualifications of service provider, description of equipment to be provided or used in performance of service, warranties of end product or result, etc.) DURATION OF AGREEMENT AND SCI-IlgDULE OF SERVICES TO BE PROVIDED: Describe in detail the general duration of the Agreement (i.e. June 10 thru Sept. 23, 1992), followed by a description of hours of operation, days, number of sessions, rime per session, etc. DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION: Review the provision for compensation in the General Conditions. Set out in detail agreement for compensation. (Hourly rate, unit rate, percent o.f fees, minimum/maximum compensation, method and manner of compensation if different than set forth in General Conditions, em.) AMENDMENTS TO GENERAL CONDITIONS: Review the entire General Conditions with the Contractor, section by section. Use this space ro explain in detail any amendments to the General Conditions mutually agreed to by the parties. Any other terms or conditions not set out anywhere else should be added in this section. (Equipment, materials, insurance, termination, contract monitoring, etc.) If any section of the Service Agreement does not provide enough space, use a separate piece of paper to complete and add the following to the section on the Service Agreement: "See attached for additional language." 10