HomeMy WebLinkAboutresolution.council.016-04 RESOLUTION # i~,
(Series of 2004)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND TIMBERLINE ELECTRIC AND CONTROL
CORPORATION, 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 Timberline Electric and Control
Corporation, 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 Timberline Electric and Control
Corporation 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:///~ /~ ~,~/
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 m¢eting held March 8, 2004.
Ka~n S. ~o~h, City'-Cl~k
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 stuns 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 CitT¢ .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 employee, any fee, commission, percentage, brokerage fee, gifts
or any other consideration contingent upon or resulting from the award or making of this
contract.
6. P,o?ipment> 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 Monitc~ring. Contractor agrees to allow City to reasonably monitor the
services to be provided in accordance with the Service Agreement.
8. Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall result in, or be construed as establishing an
employment relationship. Contractor shall be, and shall perform as, an independent contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No
agent, employee, or servant of Contractor shall be, or shall be deemed to be, the employee,
agent or servant of the City. City is interested only in the results obtained under this contract.
The manner and means of conducting the work are under the sole control of Contractor. None
of the benefits provided by City to its employees including, but not limited to, workers'
compensation insurance and unemployment insurance, are available from City to the employees,
agents or servants of Contractor. Contractor shall 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 required under unemployment insurance, social security and
income tax law, with respect to Contractor and/or Contractor's employees engaged in the
performance of the services agreed to herein.
9. lztdemnkfication. Contractor agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and
demands, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other
loss of any kind whatsoever, which arise out of'or are in any manner connected with this Service
Agreement, if such injury, loss, or damage is caused in whole or in part by, or is 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. Conlractor's ln.qnrance. (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
maintain insurance, or by' reason of its failure to procure or maintain insurance in sufficient
amounts, duration, or types.
(b) Contractor shall procure and maintain Workmen' s Compensation insurance to
cover obligations imposed by. applicable laws for any employee engaged in the performance of
work under the Service Agreement, and Employers' Liability ~nsurance 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 Worlcmen' 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 pro¥ide 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 to request and receive a certified copy of any policy and any
endorsement thereto.
(h) The parties hereto understand and agree that City is relying on, and does 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.
11. 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 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 pa~ties 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; ,qnspens~on: Tneligihili~, and Voluntary
Exclusion. Contractor certifies, by acceptance of the Service Agreement, that neither it nor its
principals is presently debarred, suspended, proposed for debarment, declared ineligible or
voluntarily excluded from participation in any transaction with a F'ederal 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, Crratuities. Kickbacks and Conflicts of Interest.
Contractor warrants that no person or selling agency has been employed or retained to solicit or
secure this Contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial
or selling agencies maintained by the Contractoi* 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 '
o
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 City. 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. Fnnct 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 hvailable. If the Service Agreement contemplates the City utilizing state or federal fm~ds 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 ro 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; 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. Contractor agrees to meet all of the requirements of City' s municipal code, Section 13-
98, pertaining to non-discrimination in employment.
20. City of Aspen Prom~remenr Code. Notwithstanding 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 Laws 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 perfo, rmance by Contractor of said term, covenant or condition, the City
shall be entitled to invoke any remedy available to it under the Service Agreement or by law
despite any such forbearance or indulgence.
23. ExecutiOn of Service Agreement by City. The Service Agreement shall be binding
upon all parties hereto and their respective heirs, executors, administrators, successors, and
assigns. Notwithstanding anything to the contrary contained herein, the Service Agreement shall
not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or
a duly authorized official in his or her absence).
24. Year 2000 Issues. Contractor hereby releases and holds City harmless from any
and all claims or causes of action relating to performance of this Agreement of any nature
whatsoever in tort, contract, or otherwise, for any action, inaction or for loss or damage
attributable to, resulting from, arising out of, or in connection with a year 2000 error.
25. General Terms.
(a) It is agreed that neither the Service Agreement nor any of its terms,
provisions, conditions, representations or covenants can be modified, changed, terminated or
amended, waived, superseded or extended except by appropriate written instrument fully
executed by the parties.
(b) If any of the provisions of the Service Agreement shall be held invalid,
illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any
other provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution
hereof and that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
(d) The Service Agreement shall be governed by the laws of the State of
Colorado as from time to time in effect.
SERVICE AGREEMENT
THIS AGREEMENT made this day of February, 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 ~e ~llowing covenants, the p~ties agree as
~llows:
CONTRACTOR
NAME: Timberline Electric and Control Corporation
ADDRESS: P.O. Box 793 17591 Hwy. 8 South Suite
Morrison, Colorado 80465
CONTACT PERSON: Kurt Evezich
PHONE NUMBERS HOME: N/A WORK: 303-697-0440 Fax 303-697-0450
SOCIAL SECURITY NUMBER OR D. NUMBER: 84~1090658
DESCRIPTION OF SERVICE
Timberline Electric and Control Corporation (TLECC) will install and integrate
ccntrol modifications ~o the City of Aspen Water Department Treatment plants
as described in Castle Creek Water Treatment Plant Hydraulic Actuators
Replacement,City of Aspen project # 2004-023, McLaughlin Rincon Engineering
Contract # 03-03-13, ~ TLECC QUOTATION-G~to include:
Modifications to the East Plant filter ccnsoles 1-4
Install necessary wire and conduit and terminate wire To 36 assorted valve
actuators.
Startup and ad=ustment of ~alves, and tuning of currenL loops.
Modifications to 5he Main Control Panel of the East Plant, removal of old
electronic equipment and installation of new electronic equipmenr.
Filter sub panel modifications To remove controls, install and terminate wire
5o new controls, and calibration of controls.
Modifications 5o the West Plant filter consoles 1-4
Install necessary wire and conduit and terminate wire to assorted valve.
actuators.
Installation of electronics/converters for new meters with char5 up and
testing.
Any additional electrical work required which is deemed necessary from an
outside masrer electrician will be rhe sole responsibility of TLECC to sub
contraci.
DURATION OF AND SCHEDULE OF SERVICES TO BE PROVIDED
AgreemenE for services will terminate upon completion of the proposed work.
Work hours will be from 7:30 am ~o 4:30 pm Monday through Friday, work
occurrzng on the weekends must' be pre-approved with the City of Aspen Water
Department.
DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION
Total cost of the work is no5 5o exceed $115,203 compensation for the work
will be provided through a City of Aspen purchase order.
Please invoice usinq City's Purchase Order Number:
Purchase order will no~ be issued until consrac5 is signed and the appropriation is approved by City council.
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AMENDMENTS TO GENERAL CONDITIONS
Penalty assessment will be charged for incomplete work at a rate of $500 per day or the costs associated for
keeping the general contractor and associated contractors availablefor completing accompanying service
agreements which ever is greater.
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.
Contractor
By:
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