HomeMy WebLinkAboutresolution.council.045-04RESOLUTION #
(Series of 2004)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY
OF ASPEN, COLORADO, AND BLACK AND VEATCH
CORPRATION, SETTING FORTH THE TERMS AND CONDITIONS
REGARDING BUSINESS PLAN DEVELOPMENT 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 Black and Veatch 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 Black and Veatch
Corporation regarding business plan development, '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: _~..62..~.~
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 ~~
10, 2004.
'~Koch, Citk Clerk
~ K-~ ~
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, and BLACK & VEATCH CORPORATION; ,, . ,,
( Professional ).
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
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.
Completion. Professional shall commence work immediatelY upon receipt of a written
Notice to Proceed fi.om 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 August 30, 2004. 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.
Payment. In consideration of the work performed, the City shall pay Professional on a
lump stun basis for all work performed as set forth in Exhibit B, attached. Except as
otherwise mutually agreed to by the parties the payments made to Professional shall not
initially exceed $51,400.00. Professional shall submit, in timely fashion, invoices for work
performed. The City shall review such invoices and, if they are considered incorrect or
untimely, the City shall review the matter with Professional within ten days fi.om receipt of
the Professional's bill and pay any undisputed amounts. Payments due Professional under
this Agreement shall be made by check and mailed to the PO Box identified in the
remittance instructions on the Professional's most recent invoice, and received by
Professional no later than the payment due date. The Remittance Advice document shall
be mailed with the check to the PO Box.
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. The Professional may subcontract portions of the Services to its related
entities. 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
subcontractor's 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.
Termination. The Professional or the City may terminate this Agreement, without
specifying the reason therefore, 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 pursuant to this Agreement shall become the property of the City.
Notwithstanding 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 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. If the termination is for City's convenience, the
Professional shall be paid for all services performed to the date of termination, plus
reasonable termination expenses. If the termination is due to the Professional's default, the
City shall first give the Professional ten days notice and opportunity to cure its default.
Covenant Against Contingent Fees. The Professional warrants that s/he has not 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 employee, any fee, commission, percentage,
brokerage fee, gifts or any other consideration contingent upon or resulting from the award
or making of this contract.
Independent Contractor Status. It is expressly acknowledged and understood by the part/es
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
ipnrSUr_ ance, are available fi'om City t~o ~e employees, agents or servants of Professional.
otbssional 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.
Indemnification. Professional agrees to indemnify and hold harmless the City, its officers
and employees from and against all liability, claims, and demands for bodily injury, death
or third party property damage to the extent caused by the negligent acts, errors or
omissions 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. 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. If it is determined by the final judgment of a court of competent
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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.
Professional's Insurance. (a) Professional agrees to procure and maintain, at its own
expense, a Policy or policies of insurance as required below 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 8 above by reason of its failure
to procure or maintain insurance.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the 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) Workers' 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) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000)
disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000) disease
- each employee. Evidence of qualified self-insured status may be substituted for the
Workers' COmpensation requirements of this paragraph.
(ii) Commercial General Liability insurance with combined single limits of ONE
MILLION DOLLARS ($1,000,000) each occurrence and ONE MILLION DOLLARS
($1,000,000) 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 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 combined single limits for bodily
injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence
and ONE MILLION DOLLARS ($1,000,000) 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 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 except (i) and (iv), shall be endorsed to include
the City and the City's officers and employees as additional insureds but only to the extent
of the Professional's negligence and only to the extent of the policy limits stated herein.
Every policy required above shall be primary insurance, and any insurance carried by the
City, its officers or employees, or carded by or provided through any insurance pool of the
City, shall be excess and not contributory insurance to that Provided by Professional. No
additional insured endorsement to the policy required above shall contain any exclusion for
bodily injury or property damage arising from completed operations. The Professional
shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages,
conditions, and 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) Fa/lure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and 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) In the event of a claim, the Professional shall make applicable insurance policies
available for review by City. The Professional shall retain its rights to restrict disclosure of
the Professional's proprietary information.
(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.
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.
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.
Notice. Any written notices as called for herein may be hand delivered to the respective
persons and/or addresses listed below or mailed by certifiedmail return receipt requested,
to:
City:
City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Professional:
Black & Veatch Corporation
11900 E. Cornell Ave., Ste 300
Aurora, CO
80014
Non-Discrimination. 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 ail of the requirements of City's municipal code,
Section 13-98, pertaining to non-discrimination in employment.
Waiver. The waiver by the City of any term, covenant, or condition hereof shail 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 despite any such forbearance or indulgence.
Execution of Agreement by City. This agreement shall be binding upon all parties hereto
and their respective heirs, executors, administrators, successors, and assigns.
Notwithstanding anything to the contrary contained herein, this agreement shall not be
binding upon the City unless dulY executed by the Mayor of the City of Aspen (or a duly
authorized official in his absence) following a Motion or ResOlution of the Council of the
City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to
execute the same.
Ownership of Documents. At ail times, each PartY shall retain all of its fights in its
drawing details, designs, specifications, databases, computer software, copyrights, trade
and service marks, patents, trade secrets, and any other proprietary property. City shail not
use in a written prospectus or other inveStment memorandum any Professional report
constituting or including Professional's professionai opinion, except with Professional's
prior written consent, which shall not be unreasonably withheld.
Warranty. The Professional warrants that it will perform the Services in accordance with
the standards of care and diligence normally practiced by recognized consulting firms in
performing services of a similar nature in existence at the time of performance of the
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Services. If, during the thirty-day period following completion of the Services, it is shown
there is an error in the Services caused solely by the Professional's failure to meet such
standards and City has notified the Professional in writing of any such error within that
period, the Professional shall re-perform, at no additional cost to City, such Services within
the original Scope of Services as may be necessary to remedy such error.
The Professional shall have no liability for defects in the Services attributable to the
Professional's reliance UPon or use of data, design criteria, drawings, specifications, or
other information furnished by City.
The obligations and representations contained in this Article are the Professional's sole
warr.anty and guarantee obligations and City's exclusive remedy in respect of quality of the
~ ,.,,~o u.,~ trt/-~g. AlVl/Z/Z;S; EXPRESS OR IMPLIED,
REL4 TING TO PR OFESSiON,4L 'S SERVICES .4ND PR OFESSION.4L DISCLAIMS
ANY IMPLIED W/IRP~NTIE$ W~IRR~NTiES iMpOsE-D B Y LA W INCLUDiNG
W~IRRANTIES OF MERCHANTABILITY AND FITNESS FOR ~1 P/IR TiCUL/iR
PURPOSE. This Article governs, modifies, and supersedes any other terms in this
Agreement which may be construed to address warranties or guarantees or the quality of
the Services.
Limitations. Neither party shall be liable to the other party for loss of profits or revenue;
loss of use; loss of opportunity; loss of goodwill; cost ofsubstitute facilities, goods or
services; cost of capital; cost &replacement power; governmental and regulatory
sanctions; and claims of customers for such damages; or for anY special, consequential,
incidental, indirect or exemplary damages. Except for an obligation to make payments,
neither party shall be in default to the extent any nonperformance is caused by a
circumstance beyond such party's reasonable control. The warranties, obligations,
liabilities and remedies of the part/es, as provided herein, are exclusive and in lieu of any
others available at law or in equity. The Professional's total aggregate liability under this
Agreement shall not exceed the compensation received by Professional Under this
Agreement. To the fullest extent allowed by law, releases from, waivers of, and
limitations of liability shall apply notwithstanding the breach of contract, tort including
negligence, strict liability or other theory of legal liability of the party released or whose
liability is limited.
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.
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(b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable
it shall not affect or impair the validity, legality or enforceability of any other provision.
(c) The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration, change or modification shall be made eXcept upon a
writing signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as fi.om 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.
CITY Qt~.~$PEJ~, COLORADO:
Title: ~--4q~.. ~,r~.~, tt:2~.~ _
Date:_.
WITNESSED BY:
PROFESSIONAL:
BLACK & VEATcH cORPORATiON
Date:
EXHIBIT A
CITY OF ASPEN
WATER AND ELECTRIC RATE STUDY
SCOPE OF SERVICES
Basic Services
Phase 1 - Project Orientation
Task 1.1 -Orientation Meeting and Data Collection
Upon receiving the Notice to Proceed, Professional will schedule a project "kick-off"
meeting with representatives of the City to discuss key project objectives and to collect
pertinent data. Specific subtasks include:
1.1.1
Prepare initial request for financial and operational data and information needed
prior to first meeting with City representatives. This information may be in
addition to that already identified by the City in the proposal request.
1.1.2 Meet with City representatives to identify major items of interest and concern.
Review the City's current practices and policy objectives. Review final work
plan and schedule for approval by the City, if necessary.
1.1.3 Collect readily available financial, operational, and other data and information
from City, review additional data needs, and determine course of action for
completing data collection activity.
Phase 2 - Existing Rate Analysis
Task 2.1 - Preliminary Analysis
The objective of this phase is to conduct a comprehensive review and analysis of the
City's existing rate systems. Specific subtasks include:
2.1.1 Summarize Revenue Requirements by Fund. Prepare a summary of requirements
for both capital and operating costs for each fund to include existing and furore
demands. Separate cost analyses for specialty rate factors. Identify variables that
could affect future. Itemize revenue requirements for new initiatives under
consideration.
2.1.2
Analyze Rate Recovery under Existing Rate Systems. Develop a rate model for
each enterprise fund. Compare revenue recovery with cost factors under existing
and proposed rate systems. Create capital and operating budgets for 2005 budget
cycle. Provide a detailed analysis of each specialty rate factor. Conduct a
comparative analysis of existing practices regarding fund transfers between the
enterprise funds and the general fund.
A-1
2.1.3 Finalize Scenarios for Detailed Evaluation. Further define the preliminary
scenarios. Develop additional scenarios with input from Council.
Task 2.2 - Letter Report: Summary of Findings of Existing Rate Systems
Summarize options to be analyzed. Present criteria for selection of rate systems.
Develop rate details for each scenario, identifying customer classes that would be
affected and total amount of revenue shifted between each customer class. Identify how
policy issues will be handled within the recovery system.
Task 2.3 - Meeting with City Council
Present information on preliminary findings of the existing rate systems. Receive input
regarding which scenarios Council would like analyzed in detail. Receive direction on
which new initiative Council wishes to consider.
Phase 3 - Rate Analysis
Task 3.1 - Rate Systems
The objective of this phase is to analyze rate systems and options identified by Council
and Staff.
3.1.1
3.1.2
3.1.3
Analyze Rate Scenarios. Conduct detailed analysis of rate scenarios for each fund
option selected by Council. Analyze rate impact for a series of typical customers.
Analyze Specialty Rates. Cost of service calculationS for specialty rates. For
water utility - snowmaking (raw and potable), bulk loading operations, pumping
charges, and raw water system deliveries. For electric utility - revised system for
allocating costs for expanded service.
Analyze On-line Bill Payment Options. Determine the cost of on-line bill
payment options. Provide recommendations for implementation options that will
not increase cost to non-participants.
Task 3.2 - Report: Summary of Scenarios
Summarize rate impacts for comparable communities. Analyze how rate systems would
be implemented using existing software systems. Identify any significant implementation
issues. Summarize the calculation for specialty rates.
Task 3.3 - Meeting with City Council
Present detailed analysis for each scenario selected during first meeting. Receive
direction on final criteria for selection of rate system.
A-2
Phase 4 - Recommendations
Task 4.1 - Report: Recommendations
Provide recommendations for which scenarios best satisfy the selection criteria for rate
setting. Identify factors which lead to conflict between selection criteria.
Task 4.2 - Meeting with City Council
Present recommendations on rate selection. Finalize details of the recommended rate
system.
Task 4.3 - Summary Report
Final report detailing the work completed, recommendations and rate systems. Detail
sufficient for staff and legal counsel to prepare ordinance revisions to implement each
final rate proposal.
Supplemental Services
Attend public forum meetings to discuss study findings.
be accomplished over a consecutive two-day period.
Such meetings, if needed, will
A-3
EXHIBIT B
CITY OF ASPEN
WATER AND ELECTRIC ~TE STUDY
COST OF SERVICES
The Basic Services will be performed for a lump sum fee of $48,000. This fee is based
on current hourly billing rates, the number of staff-hours of effort, and direct expenses at
cost. Direct expenses include travel, reproduction, and miscellaneous expenses,
The Supplemental Services will be performed for a lump sum fee of $3,400.
Supplemental services will be performed upon receipt of author/zation fi.om the City.
Additional work may be undertaken as mutually agreed by Professional and the City.
Costs for additional wOrk will be based on staff effort, hourly billing rates, and direct
expenses.
B-1