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HomeMy WebLinkAboutresolution.council.145-17 RESOLUTION #145 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND BELLY UP ASPEN LLC 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 concessionaire services at the Wheeler Opera House, between the City of Aspen and Belly Up Aspen LLC., a true and accurate copy of which is attached hereto as Exhibit "A",- NOW, 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 concessionaire services at the Wheeler Opera House, between the City of Aspen and Belly Up Aspen LLC, 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 Qity Council of the City of Aspen on the 13`h day of November 2017. Steven Skadron, Mayor I, Linda Manning, 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, November 13, 2017. J Linda Manni g, City Clerk The Cite of Aspen CITY OF ASPEN STANDARD FORM OF AGREEMENT v 2009 BELLY UP ASPEN LLC CONCESSIONAIRE SERVICES City of Aspen Project No.: 2017-105 AGREEMENT made as of 14°i day of August, in the year 2017. BETWEEN the City: Contract Amount: The City of Aspen c/o Wheeler Opera House Total: 130 South Galena Street 5% of monthly gross bar receipts to be paid Aspen, Colorado 81611 to Wheeler Opera House as rent. Phone: (970)920-5055 If this Agreement requires the City to pay And the Belly Up Aspen LLC: an amount of money in excess of $25,000.00 it shall not be deemed valid Bell U As LLC until it has been approved by the City Belly p pen Council of the City of Aspen. C/o Micholdber L suife. ADa City Council Approval: zJ,, tp Date: jVtY7a Pt� L3, I7 Thoiic: Resolution No.: HE, SorfaS. 2nt-► For the Following Project: Operation, Staffing, and Management of the.Wheeler Bar between September 1, 2017 and August 30, 2020 Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Compensation. Agreement Professional Services Page 0 The City and Belly Up Aspen LLC agree as set forth below. 1. Scope of Work. Belly Up Aspen LLC shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Belly Up Aspen LLC 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 Belly Up Aspen LLC 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 thru August 30. 2020. Upon request of the City, Belly Up Aspen LLC shall submit, for the City's approval, a schedule of Belly Up Aspen LLC's services which shall be adjusted as required as the project for approvals of authorities having jurisdiction over the project. 3. Payment. In consideration of the work performed, Belly Up Aspen LLC shall pay on a monthly basis 5% of gross sales, as specified in Exhibit B, to the City of Aspen on the 15'h day of each month beginning October 15, 2017. 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, if authorized, shall not relieve the Belly Up Aspen LLC of any of the responsibilities or obligations under this Agreement. Belly Up Aspen LLC shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Belly Up Aspen LLC to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination of Belly Up Aspen LLC Services. The Belly Up Aspen LLC or the City may terminate the Belly Up Aspen LLC 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.Notwith- standing the above, Belly Up Aspen LLC 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 Belly Up Aspen LLC. 6. 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. Belly Up Aspen LLC 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 Belly Up Aspen LLC 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 Belly Up Aspen LLC. 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 Belly Up Aspen LLC. Belly Up Aspen LLC shall be solely and Agreement Professional Services Page I entirely responsible for its acts and for the acts of Belly Up Aspen LLC's agents, employees, servants and subcontractors during the performance of this contract. Belly Up Aspen LLC 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 Belly Up Aspen LLC and/or Belly Up Aspen LLC's employees engaged in the performance of the services agreed to herein. 7. Belly Un Aspen LLC's Insurance. (a) Belly Up Aspen LLC 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 Belly Up Aspen LLC pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Belly Up Aspen LLC 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 suffi- cient amounts, duration,or types. (b) Belly Up Aspen LLC shall procure and maintain, and shall cause any subcontractor of the Belly Up Aspen LLC 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 Belly Up Aspen LLC 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 ($500,000.00) 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 Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to 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. Agreement Professional Services Page 2 (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 Belly Up Aspen LLC'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 Belly Up Aspen LLC has no owned automobiles, the requirements of this Section shall be met by each employee of the Belly Up Aspen LLC providing services to the City under this contract. (iv) Belly Up Aspen LLC 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 Belly Up Aspen LLC. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Belly Up Aspen LLC 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 Belly Up Aspen LLC'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 Belly Up Aspen LLC to procure or maintain policies providing the required coverages,conditions,and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Belly Up Aspen LLC to City upon demand, or City may offset the cost of the premiums against monies due to Belly Up Aspen LLC from City. (1) 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 Agreement Professional Services Page 3 i i seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 8. 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 Belly Up Aspen LLC for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Belly Up Aspen LLC reasonable notice of any changes in its membership or participation in CIRSA. 9. 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. 10. 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. 11. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affection] 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. Belly Up Aspen LLC agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 12. 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 Belly Up Aspen LLC to which the same may apply and, until complete performance by Belly Up Aspen LLC of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 13. 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. 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 Agreement Professional Services Page 4 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, Belly Up Aspen LLC certifies and represents that at this time: (i) Belly Up Aspen LLC shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Belly Up Aspen LLC has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Belly Up Aspen LLC hereby confirms that: (i) Belly Up Aspen LLC 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) Belly Up Aspen LLC shall not enter into a contract with a subcontractor that fails to confirm to the Belly Up Aspen LLC 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. (iii) Belly Up Aspen LLC has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Belly Up Aspen LLC does not employ any new employees who are not eligible for employment in the United States; and if Belly Up Aspen LLC has not been accepted into the Federal Basic Agreement Professional Services Page 5 Pilot Program prior to entering into the Public Contract for Services, Belly Up Aspen LLC 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. Belly Up Aspen LLC 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 Belly Up Aspen LLC 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) Belly Up Aspen LLC shall not use the Basic Pilot Program procedures to iundertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Belly Up Aspen LLC 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, Belly Up Aspen LLC shall: (1) Notify such subcontractor and the City of Aspen within three days that Belly Up Aspen LLC 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 Belly Up Aspen LLC 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) Belly Up Aspen LLC 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 Belly Up Aspen LLC 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 Belly Up Aspen LLC's violation of Subsection 8-17.5-102, C.R.S. (ix) If Belly Up Aspen LLC operates as a sole proprietor, Belly Up Aspen LLC hereby swears or affirms under penalty of perjury that the Belly Up Aspen LLC Agreement Professional Services Page 6 (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 e[ seq., 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. 17. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Belly Up Aspen LLC 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 Belly Up Aspen LLC for the purpose of securing business. (b) Belly Up Aspen LLC 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) Belly Up Aspen LLC 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 Belly Up Aspen LLC, 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 Belly Up Aspen LLC; and 4. Recover such value from the offending parties. 18. 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 this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 19. General Terms. Agreement Professional Services Page 7 (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand 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. 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-OF ASPEN COLORA O: BELLY UP ASPS LC: [Signature] [Signature] /� BY s Pr C e lam. ( l I I By: ;e {t -/ T L [ l l Title: ,,s-k GI GCer Title: Date: Approved as to form: kLO - --, — "I City Attorney's Office Agreement Professional Services Page 8 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT Operating Dates: September 1, 2017—August 30, 2020 Operating Space: Wheeler Bar and Bar Storage Areas including all equipment in the areas. Belly Up Aspen LLC will operate using the Wheeler POS, and will pay an annual rent of$2,500 per year. Operating Manager: Belly Up Aspen LLC must appoint an acting bar manager for the Wheeler Bar who is not the same person as the acting general manager for Belly Up Aspen LLC. The acting manager must pass the standard and required background check, and will be listed on the Wheeler Opera House's liquor license. Evidence of passing standard checks must be submitted to the City. Operation Terms: Belly Up Aspen LLC will pay 5% of monthly gross sales to the City on the 15th of each month via business check beginning October 15, 2017. Operating Schedule: Belly Up Aspen LLC Agrees to operate bar 1 hour prior to each public event, staying operational until at least intermission or until mutually agreed upon time. Agrees to operate as needed for private events, TBA based on schedule. Food and Beverage Menu: Price and product menu will be submitted to the Wheeler for approval upon the execution of this Agreement, and no later than 5 business days prior to the first bar opening. Any price changes following the initial approval must be approved in writing by the Wheeler's Executive Director. The Wheeler requires that affordable pricing is available, requiring a suggested range of$5 - $l8. All prices will be mutually approved by the Wheeler and Belly Up. If prices cannot be mutually agreed upon, the agreement will be terminated. Appearance: Belly Up Aspen LLC staff will maintain a professional appearance while working at the Wheeler Bar, and uniform/attire shall be agreed upon between Belly Up Aspen LLC and Wheeler Management prior to opening. Belly Up Aspen logos should not be present on working bartenders. Licenses: Belly Up Aspen LLC will operate under the Wheeler Tavern License and agrees to abide by all rules and regulations of the State of Colorado, City of Aspen, and Pitkin County. Belly Up Aspen, LLC will actively protect the Wheeler's liquor license and agrees to and shall save, hold and keep harmless and indemnify the City from and against any and all liquor code violations caused by Belly Up. Any violations of state or local liquor code provisions will be grounds for immediate termination of this agreement. Agreement Professional Services Page 9 EXHIBIT B PROFESSIONAL SERVICES AGREEMENT Compensation Belly Up Aspen LLC agrees to pay the Wheeler Opera House five percent of monthly gross sales on the 15`h of each month beginning October 15, 2017. If the payment is not received on or before the 15th, Belly Up Aspen LLC shall pay the Wheeler a late charge of five percent (5%) on such overdue amount. The parties hereby agree that such a late charge will represent a fair and reasonable settlement of the cost that the Wheeler would incur by reason of the late payment by Belly Up Aspen LLC. Acceptance of such late charges by the Wheeler shall in no event constitute a waiver of Belly Up Aspen LLC's default with respect to such overdue amount, nor prevent the Wheeler from exercising any of the other rights and remedies granted hereunder unless the entire amount due, plus late charge, is accepted by the Wheeler..In addition, any sum for which Belly Up Aspen LLC shall be obligated to the Wheeler, which is not received on the due date thereof, shall bear interest at the rate of five percent(5%) per annum from and after the due date until paid. Belly Up Aspen LLC shall assume all costs involved with operating the Wheeler Bar including food and beverage costs, labor, insurance, license(s), etc. All revenues collected from the Wheeler Bar operations shall be retained by Belly Up Aspen LLC. Collecting and remitting all appropriate taxes, fees, and documentation is the sole responsibility of Belly Up Aspen LLC. Agreement Professional Services Page 10