HomeMy WebLinkAboutresolution.council.023-06
RESOLUTION # ~
(Series of 2006)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN,
COLORADO, AND SMART MAHONEY ASSOCIATES, LLC, SETTING FORTH THE
TERMS AND CONDITIONS REGARDING 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 Smart Mahoney Associates, LL., 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 I
That the City Council of the City of Aspen hereby approves that contract between the
City of Aspen, Colorado, and Smart Mahoney Associates, LLC, regarding Phase I Project
Planning Services for the proposed Castle Creek Hydroelectric Plant, a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager ofthe City of Aspen
to execute said contract on behalf of the City of Aspen.
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Dated:
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'Helen Kal erud, ayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy oftha~lution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held . 1.1-<.. i.I _ /0. ~.b.
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EXHIBIT "A"
CITY OF ASPEN
GENERAL CONDITIONS
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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.
I. Comoletion. 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. Pavment. 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-Assil!1labilitv. Both parties recognize that this contract is one for personal services
and cannot be transferred, assigned, or sublet by either party without ptior 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 payor be liable for payment of any
sums due which may be due to any subcontractor unless agreed to in writing beforehand by the
City.
4. Termination. The Contractor or the City may terminate this Agreement upon thirty (30)
days notice, without specifying the reason therefor, by giving notice, in writing, addressed to the
other party, specifying the effective date of the termination.
The City shall have the right to terminate the Service Agreement upon three (3) days notice if
Contractor fails to comply with the terms and conditions set forth in Sections 1,3,5,6,7, 10, 13,
14, 16, 19 or 21. For breach of any other term and condition of the Service Agreement, City may
terminate the Service Agreement with ten (10) days ptior notice to cure and failure by Contractor to
so cure.
No compensation shall be earned after the effective date of the termination. Notwithstanding the
above, Contractor shall not be relieved of any liability to the City for damages sustained by the City
by virtue of any breach of this Agreement by the Contractor, and the City may withhold any
payments to the Contractor for the purposes of set-off until such time as the exact amount of
damages due the City from the Contractor may be determined.
5. Covenant Al!ainst Continl!ent Fees. The Contractor warrants that slhe 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 slhe 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. Eauioment. Materials and Suoolies. 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 Monitorinl!. Contractor agrees to allow City to reasonably monitor the services
to be provided in accordance with the Service Agreement.
8. Indeoendent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall resnlt 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 worlc 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. Indemnification. Contractor agrees to indemnify and hold harmless the City, its officers,
employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage, including without limitation claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, or any 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. Contractor's Insurance. (a) Contractor agrees to procure and maintain, at its own
expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands,
and other obligations assumed by the Contractor pursuant to Section 9 above. Such insurance shall
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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, clairns, 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 WorIcmen's Compensation insurance to cover
obligations imposed by applicable laws for any employee engaged in the performance of work
under the Service Agreement, and Employers' liability insurance with minimum limits of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOU-
SAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may
be substituted for the Workmen's Compensation requirements of this paragraph.
(c) If the Service Agreement requires any insurance in addition to that referenced above at
subsections (a) and (b), or a particular type of coverage, Contractor shall procure and maintain, and
shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance
coverages referenced in the Service Agreement. All insurance coverages shall be procured and
maintained with forms and insurance acceptable to the City. All coverages shall be continuously
maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor
pursuant to Section 9 above. In the case of any claims-made policy, the necessary retroactive dates
and extended reporting periods shall be procured to maintain such continuous coverage.
(d) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be ptirnary
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, 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 the Service Agreement and shall provide that the coverages afforded under the policies
shall not be canceled, terminated or materially changed until at least thirty (30) days ptior 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.
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(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. Citv'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
ClRSA.
12. Waiver of Presumotion. The Service Agreement was negotiated and reviewed through
the mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the parties
in the negotiation, review or drafting of the Service Agreement.
13. Certification Rel!afdinl! Debarment. Susoension. Inelicibility, 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 Federal or State department or agency. It further
certifies that ptior 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 19 the City.
14. Warranties Al!ainst Continl!ent Fees. Gratuities. 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 Contractor for the purpose of securing business.
Contractor agrees not to give any employee or former employee of the City a gratuity or any
offer of employment in connection with any decision, approval, disapproval, 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 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
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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 :
1. Cancel the Service Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Contractor, vendor, or
sub-contractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the
value of anything transferred or received by the Contractor; and
4. Recover such value from the offending parties.
15. Termination for Defanlt or for Convenience of Citv. The services contemplated by the
Service Agreement may be canceled by the City ptior to acceptance by the City whenever for any
reason and in its sole discretion the City shall determine that such cancellation is in its best interests
and convenience.
16. Fund Availabilitv. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being approptiated, budgeted and otherwise made
available. If the Service Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, the Service Agreement shall be contingent upon the availability of those funds
for payment pursuant to the terms of the Service Agreement.
17. City Council Aooroval. If the Service Agreement requires the City to pay an amount of
money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
18. Notices. Any written notices as called for herein may be hand delivered or mailed by
certified mail, return receipt requested to the respective person or address listed for the Contractor
in the Service Agreement.
19. Non-Discrimination; oenaltv. No discrimination because of race, color, creed, sex,
marital status, affectional or sexual orientation, family responsibility, national urigin, 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. Citv of Asoen Procurement 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. Comoliance With All Laws and Rel!Ulations. 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.
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22. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of the Service Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Contractor to which the same may apply and, until
complete performance by Contractor of said term, covenant or condition, the City shall be entitled
to invoke any remedy available to it under the Service Agreement or by law despite any such
forbearance or indulgence.
23. Execution of Service Al!feement bv 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. 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 approptiate 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 tirne 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.
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SERVICE AGREEMENT
THIS AGREEMENT rnade this3'!! day of Aoril, 2006, by and between the City of Aspen
("City") and the Contractor identified hereinbelow.
WITNESSETH, that whereas the City wishes to purchase the services described
hereinbelow and Contractor wishes to provide said services to the City as specified herein.
NOW THEREFORE, in consideration of the following covenants, the parties agree as
follows:
CONTRAcrOR
1GIIIt: SIaart:, Mahoney" ".oat.tea, LLC
ADD1tSSs: P.O. 80s 2122
Fort Collins, CO 80522~2122
COJI"!AC~ PZP.SC>X: lU.ebard Baart
PIlOlIE lOlIlIlDS
BCIIE:
'[10-"22' - Y.~7lf
WORK: 970-218-1095
SOCIAL uctIRI'l'J' JroIIBZ,J, OR nD&DL I.n. 1IOIIIlU.: 20-137-4531
DESCRWTION OF SERVICE
Development and implementation of a three day work shop to formulate a strategic plan for the
Castle Creek Hydroelectric plant. The tasks for this are outlined in the proposal
"Castle Creek Hydroelectric Project Planning Workshop" submitted by Smart Mahoney & Associates,
LLC March 28, 2006.
DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED
Planning phase will begin with the approval from Council and issuance of a Purchase order
for the work. Anticipated timing for the proceSS shall conclude by the second week of July as
outlined in the proposal "Castle Creek Hydroelectric Project Planning Workshop" submitted by
Smart Mahoney & Associates, LLC March 28, 2006.
DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION
Total cost of services are not to exceed $29,000 for completion of all tasks as out lined in the
proposal UCastle Creek Hydroelectric Project Planning Workshop# submitted by Smart Mahoney & Associates,
LLC March 28, 2006.
Please invoice usins-~~~~'s Purchase Order Number:
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AMENDMENTS TO GENERAL CONDITIONS
The following amendments concern the schedule for payment of compensation,
conditions for withholding final payment and insurance requirements and are
made a part of this agreement.
1. Amount and method of compensation:
The City shall
. pay the contractor an initial advance of $5,000 for mobilization
. make monthly progress payments for expenses and services
. withhold a final payment of $5,000 - pending receipt of the final
report
2. Insurance Requirements:
The Contractor shall
. obtain and maintain workman's Compensation insurance if and when
the contractor has employees
The parties acknowledge and understand that this Service Agreement is, except as
specifically amended hereinabove, subject to all ofthe terms and conditions set forth in
the City of Aspen General Conditions for Service Agreements, a copy of which is
appended hereto as Appendix "An and by this reference made a part hereof.
Having agreed to the above and foregoing, the parties hereto do affix their signatures.
By:
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Contractor:
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Title: P~M'.t' ~ ~t~~' 4'>.,>wdq;
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LLC-