HomeMy WebLinkAboutresolution.council.168-17 RESOLUTION #168
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND PROFESSIONAL FACILITIES MANAGEMENT INC. AUTHORIZING
THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF
THE.CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
performing arts focused programming/booking and contracting services, between
the City of Aspen and Professional Facilities Management Inc., a true and accurate
copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City,of Aspen hereby approves that Contract
for performing arts focused programming/booking and contracting services,
between the City of Aspen and Professional Facilities Management Inc., a copy of
which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager 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 11`" day of December 2017. i
Steven Skaron, Mayor
I, Linda Manning, duly appointed and acting Cityerk 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, December 11, 2017
mda Manning, City C erk
i6e Airy of Bspeo
CITY OF ASPEN STANDARD FORM OF AGREEMENT v 2009
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2017-122.
AGREEMENT made as of 11'x'day of December,in the year 2017.-
BETWEEN
017:BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Wheeler Opera House
130 South Galena Street Total: $100,000.00
Aspen, Colorado 81611
Phone: (970)920-5079
If this Agreement requires the City to pay
And the Professional: an amount of money in excess of
$25,000.00 it shall not be deemed valid
Management Inc. until it has been approved by the City
Professional Facilities Mana
g Council of the City of Aspen.
c/o Norbert Mongeon
220 Weybosset Street City Council Approval:
Providence, Rhode Island 02903
Phone: 401-421-2997 Date: December 11, 2017
Resolution No.: QS
For the Following Project:
Performing arts focused programming/booking and contracting services for the Wheeler
Exhibits appended and made a part of this Agreement:
Exhibit A: Scope of Work.
Exhibit 13: Fee Schedule.
The City and Professional agree as set forth below.
Agreement Professional Services Page 0
I. Scone 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. Comolefion. Professional shall commence Work immediately upon receipt of a written
Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as
is consistent with professional skill and care and the orderly progress of the Work in a timely
manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later
than December 31. 2018: with three one-year options to renew. 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 on a time and
expense basis for all work performed. Except as otherwise mutually agreed to by the parties the
payments made to Professional shall not initially exceed the amount set forth in Exhibit B.
4. Non-Assignability; Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the
other. Sub-Contracting is not authorized.
5. Intentionally Omitted
6. Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of 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 pursuant to this Agreement
shall become the property of the City.
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
Agreement Professional Services Page 1
respect to Professional and/or Professional's employees engaged in the performance of the services
agreed to herein.
S. 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, to the extent and
for an amount represented by the degree or percentage 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 wrongful act, omission,
error, professional error, mistake, negligence, or other fault of the Professional, or any officer,
employee, representative, or agent of the Professional, or which arises out of any workmen's
compensation claim of any employee of the Professional or of any employee. 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 of parties other than the City. 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 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, or by reason of its failure to procure or maintain insurance in sufficient amounts,
duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the
City. All coverages shall be continuously maintained to cover all liability, claims, demands,
and other obligations assumed by the Professional pursuant to Section 8 above. In the case
of any claims-made policy, the necessary retroactive dates and extended reporting periods
shall be procured to maintain such continuous coverage.
(i) 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 ONE
DOLLARS ($1,000,000.00) for each accident, ONE MILLION DOLLARS
($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS
Agreement Professional Services Page 2 t y1b11�
($1,000,000.00) 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 minimum combined single
limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and TWO
MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily injury,
broad form property damage (including completed operations), personal injury
(including coverage 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 Professionai 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 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 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 to the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages,
conditions, 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
Agreement Professional Services Page 3 aY`/1
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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
$350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et
seg., 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 Proper-
ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management 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.
Notice. Any written notices as called for herein may be hand delivered or mailed by
certified mail return receipt requested to the respective persons and/or addresses listed above.
13. 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 all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of this Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Professional to which the same may apply and,
until complete performance by Professional of said tern, 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 Aeieement 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)
Agreement Professional Services - Page 4
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. Illegal Aliens—CRS 8-17.5-101 &24-76.5-101,
(a) Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
(b) Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public
Law 156, 108th Congress, as amended, that is administered by the United States
Department of Homeland Security.
"Public Contract for Services"means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than
reports that are merely incidental to the required performance.
(c) By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confimr the employment eligibility of all employees who are
newly hired for employment in the United States;and
(ii)Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not illegal aliens.
(d) Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails to
confirm to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
Agreement Professional Services Page 5
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months thereafter, until
Professional is accepted or the public contract for services has been completed,
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien, Professional shall:
(1) Notify such subcontractor and the City of Aspen within three days
that Professional has actual knowledge that the subcontractor has newly
employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within three
days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes.or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the City of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
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(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal law,
(2) shall comply with the provisions of CRS 24-76.5-101 et seg., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
16. Wan'anties ''AsainstContint entFees' Gratuities-Kickbacks and'Con fl icts-of,interest.
(a) Professional 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 Professional for
the purpose of securing business.
(b) Professional agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
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 therefore.
(c) Professional represents that no official, officer, employee or representative of the
City during the term of this Agreement has or one (1) year thereafter shall have any
interest, direct or indirect, in this Agreement or the proceeds thereof, except those that
may have been disclosed at the time City Council approved the execution of this
Agreement.
(d) 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:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4. Recover such value from the offending parties.
17. 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.
Agreement Professional Services Page 7
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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 from time
to time in effect.
18. ]Electronic'Sip—natures-and•i3lectronie-Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
„ of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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 first written above.
CITY OAWN OLPDO: PROFE SI. AL:
[Signahve] [Signahae] .A
By: By:
[Name] [Name]
Title: ASI 92-VL Title:
Date: I L/I Date: ( 7
Agreement Professional Services Page 8
Approved as to form:
City Attomey's Office
Agreement Professional Services Page 9
EXHIBIT A PROFESSIONAL SERVICES AGREEMENT
Professional Facilities Management Inc. (PFM) will provide performing arts focused
programming/booking and contracting services (live acts)for Wheeler Opera House(WOH)
programming and comedy festivals. Annually PFM will book a minimum of 36 mainstage events
from September to August, plus a smaller fall and summer series of an estimated 12 acts,plus an
additional mix of 14— 16 comedians for the annual Aspen Laugh Festival.More specifically,PFM
will be responsible for:
Offering, on a timely basis, a broad range of programming opportunities as needed
based on the programming and series calendars (including targeted series
completion dates). Services include recommendation of appropriate opportunities
in the form of budgets reflecting risk/reward for a particular act/show along with
information on the act's past performance when applicable and PFM's history
with the act in other facilities. Upon request from WOH, PFM staff will also
pursue requested acts and perform a similar analysis.
e Use and make available(at no additional cost) its proprietary event software
system (Oz),providing access to the WOH Executive.Director and appropriate
staff to track events and access all required digital documents (act offers,
correspondence, confirmations, contracts, etc).
• Provide contract/rider review of each confirmed act, returned to the Wheeler in a
timely manner for final approval and signature. .
• Provide administrative support for agency contacts for marketing collateral,VIP
ticketing agreements, and any other deal specific points as needed (can be via
database system or via direct staff support).
.• Provide ongoing support through settlement of each event, including being
available on holidays/weekends as needed should an act cancel or want to re-
negotiate terms on the event/ festival day.
The PFM programming team will communicate with the Wheeler Opera House staff
regularly by email or phone and will, upon request of WOH Executive Director, travel to
Aspen to meet with staff or be on site for key events. PFM will schedule monthly
recap/discussion calls to review any open items that may be of concern to either party.
Page 10.
Agreement Professional Services
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EXHIBIT B PROFESSIONAL SERVICES AGREEMENT
FeeSchedule
The City shall pay PFM $100,000 annually for services provided. Billing will be on a monthly or
quarterly basis. Payment due Net 30.
First payment will be on February 1,2018 for$10,000. Subsequent billing of$10,000 per month
on the first of each month, ending November 1, 2018.
If travel is requested, the City will reimburse the out-of-pocket air, ground, lodging, and meals
required for travel. Travel expense estimates will be provided to the Wheeler Opera House
Executive Director for advance approval.
Should the City and PFM choose to exercise the option to renew the contract for an additional
year, the fee will increase 3%over the preceding year. Notice to renew.will be given no later than
September 1 each year. There are three(3) one-year options to renew.
Agreement Professional Services Page 11