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HomeMy WebLinkAboutresolution.council.062-06 RESOLUTION ~ (Series of 2006) A RESOLUTION APPROVING A CONTRACTUAL AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF ASPEN, COLORADO, AND CLARION ASSOCIATES FOR CONSULTANT SERVICES RELATED TO AMENDMENTS TO THE CITY OF ASPEN LAND USE CODE. WHEREAS, there has been submitted to the City Council an "Agreement for Professional Services" between the City of Aspen, Colorado, and Clarion Associates, a copy of which agreement is attached hereto and made a part thereof, for consulting service related to the Land Use Code. 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 the "Agreement for Professional Services" between the City of Aspen, Colorado, and Clarion Associates, 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: ~.~ I? ~ / ( 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 August 14,2006. Attachments A - Proposed service contract with Clarion Associates. LAND USE CODE PLANNING SERVICES AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Clarion Associates, LLC ("Clarion"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. CLARION shall perform in a competent and professional manner the Scope of Work as developed by the City of Aspen Community Development Department in coordination with Clarion Associates and Alan Richman Planning Services, as amended from time to time, and by this reference incorporated herein. 2. Completion. CLARION 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 2006. Upon request of the City, CLARION shall submit, for the City's approval, a schedule for the performance of CLARION'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 Contract Administrator 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 CLARION. 3. Payment. In consideration of the work performed, City shall pay CLARION on a time and materials basis for all work performed. The rates for work performed by CLARION shall not exceed $250 per hour for work performed by a Principal Staff of Clarion, $100 per hour for work performed by Associate Staff of Clarion, and $55 per hour for work performed by Support Staff of Clarion. All materials and incidentals, including reasonable travel and lodging expenses, shall be billed at 100% of cost with no additional administration fee. Except as otherwise mutually agreed to by the parties, the total payments made to CLARION shall not initially exceed $50,000. CLARION 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 CLARION within ten days from receipt of CLARION's bill. 4. 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. Authorized sub-contracting shall not relieve CLARION of any of the responsibilities or obligations under this agreement. CLARION shall be and remain solely responsible to the City for the negligent acts, errors, or omissions of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 1 of CLARION 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 sub-contractor. It is understood CLARION may subcontract professional services and such subcontracting may be authorized by the City's Contract Administrator, named herein. 5. Termination. CLARION or the City may terminate this Agreement, without specifYing the reason therefore, by giving two weeks 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 CLARION pursuant to this Agreement shall become the property of the City. CLARION retains the right to use such materials for business marketing purposes. Notwithstanding the above, CLARION 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 CLARION, and the City may withhold any payments to CLARION for the purposes of set-off until such time as the exact amount of damages due the City from CLARION may be determined. 6. Covenant Against Contingent Fees. CLARION warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for CLARION, 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. 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. CLARION 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 CLARION 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 CLARION. 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 CLARION. CLARION shall be solely and entirely responsible for its acts and for the acts of CLARION's agents, employ- ees, servants and subcontractors during the performance of this contract. CLARION 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 CLARION and/or CLARION's employees engaged in the performance of the services agreed to herein. 8. Indemnification. CLARION agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and Contract for Services: Land Use Code Analysis - Clarion C:\homeIMoratoriumIClarion_contract.doc Page 2 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, 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 negligent act, omission, error, professional error, mistake, or other fault of CLARION, any subcontractor of CLARION, or any officer, employee, representative, or agent of CLARION or of any subcontractor of CLARION, or which arises out of any workmen's compensation claim of any employee of CLARION or of any employee of any subcontractor of CLARION. CLARION 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 CLARION, 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 jurisdiction that such injury, loss, or damage was caused in whole or in part by the negligent act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse CLARION for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. CLARION's Insurance. (a) CLARION 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 CLARION pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. CLARION 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) CLARION shall procure and maintain, and shall cause any subcontractor of CLARION 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 CLARION 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) Workmen's 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 HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident, ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - policy limit, and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements ofthis paragraph. Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 3 (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. (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 CLARION'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. (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 CLARION. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. CLARION 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 CLARION'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 CLARION 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 CLARION to City upon demand, or City may offset the cost of the premiums against monies due to CLARION from City. Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 4 (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 $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. 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 Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to CLARION for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide CLARION 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. 12. Notice. Any written notices as called for herein may be hand delivered to the respective Contract Administrator listed below or mailed by certified mail return receipt requested, to: City of Aspen: Chris Bendon Community Development Director City of Aspen 130 South Galena Street Aspen, Colorado 81611 Clarion Associates: Chris Duerksen Principal Clarion Associates 1700 Broadway, Suite 400 Denver, CO 80290 303-830-2890 - office 303-860-1809 - fax 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. CLARION 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 Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 5 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 CLARION to which the same may apply and, until complete performance by CLARION 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. 15. Execution of Agreement bv City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. 16. 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. (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. Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 6 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. ATTESTED BY: ~h Date: gld--I/Dro WITNESSED BY: A..".""LL '~ en'fri/~/o~ Contract for Services: Land Use Code Analysis - Clarion C:lhome\MoratoriumIClarion_contract.doc Page 7 Certification and Supplemental Conditions to Contract for Services - Conformance with ~8-17.5.101, et seQ. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06-1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal Aliens - Public Contracts for Services." This new law prohibits all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new law also requires that all contracts for services include certain specific language as set forth in the statutes. This Certification and Supplemental Conditions has been designed to comply with the requirements of this new law. Applicability. The certification and supplemental conditions set forth herein shall be required to be executed by all persons having a public contract for services with the City of Aspen. 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. "Contractor" means a person having a public contract for services with the City of Aspen. "Public Contract for Services" means any type of agreement, regardless of what the agreement may be called, between the City of Aspen and a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "Services" means the furnishing oflabor, 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. PURSUANT TO SECTION 8-17.5-101, C.R.S., et. seq.: By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. The Public Contract for Services referenced below is hereby amended to include the following terms and conditions: 1. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor 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. Contractor 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 Contractor 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. 4. Contractor 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. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (i) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) 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 illegal alien; except that Contractor 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. 6. Contractor 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. 7. If Contractor 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 Contractor's violation of Subsection 8- 17.5-102, C.R.S. Public Contract for Services: ervices - Clarion Associates Contractor Signature: By: Chris Duerksen Managing Partner Clarion Associates JPW- saved: 8/3/2006-867-M:\city\cityatty\contract\fonns\certification - hb-06-1343.doc