HomeMy WebLinkAboutresolution.council.089-06
RESOLUTION ~
(Series of 2006)
A RESOLUTION APPROVING A CONTRACTUAL AGREEMENT FOR
PROFESSIONAL SERVICES BETWEEN THE CITY OF ASPEN, COLORADO,
AND WINTER AND COMPANY REGARDING FUNDING FOR THE
COMPLETION OF COMMERCIAL AND LODGING DESIGN STANDARDS
WHEREAS, there has been submitted to the City Council an "Agreement for
Professional Services" between the City of Aspen, Colorado, and Winter and Company, a
copy of which agreement is attached hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1.
That the City Council of the City of Aspen hereby approves the "Agreement for
Professional Services" between the City of Aspen, Colorado, and Winter and Company, 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:~.A~)o1~ ~,6
------
!, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing
is a tme and accurate copy of that resolution ad~ted by the City Council of the City of
Aspen, Colorado, at a meeting held November 12, 2006. .
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 Winter and Company ("Winter & Co.").
For and in consideration of the mutual covenants contained herein, the parties agree as follows:
1. Scope of Work. Winter & Co. 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 Winter and Co, as amended from time to time, and by this reference
incorporated herein as Exhibit A.
2. Completion. Winter & Co. 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 April 20~pon request of the City, Winter & Co. shall
submit, for the City's approval, a schedule for the performance of Winter & Co.'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 Winter & Co.
3. Payment. In consideration of the work performed, City shall pay Winter & Co. on a time
and materials basis for all work performed. The rates for work performed by Winter & Co.
shall not exceed $175 per hour. All materials and incidentals 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 Winter & Co. shall not initially exceed $102,706.00. Winter &
Co. 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 Winter & Co. within ten days from receipt of Winter & Co.'s bill.
4. Non-Assignabilitv. 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 Winter & Co. of any of the
responsibilities or obligations under this agreement. Winter & Co. 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 Winter & Co. 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 Winter & Co. may subcontract professional services and such
subcontracting may be authorized by the City's Contract Administrator, named herein.
Contract for Services: Commercial Design -Winter and Company Page I
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5. Termination. Winter & Co. or the City may terminate this Agreement, without specifying
the reason therefore, by giving notice, in writing, addressed to the other party, specifying the
effective date of the termination. No fees shall be earned after the effective date of the
termination. Upon any termination, all finished or unfinished documents, data, studies,
surveys, drawings, maps, models, photographs, reports or other material prepared by Winter
& Co. pursuant to this Agreement shall become the property of the City. Notwithstanding
the above, Winter & Co. 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 Winter & Co, and the
City may withhold any payments to Winter & Co. for the purposes of set-off until such time
as the exact amount of damages due the City from Winter & Co. may be determined.
6. Covenant Against Contingent Fees. Winter & Co. warrants that sihe has not employed or
retained any company or person, other than a bona fide employee working for Winter & Co,
to solicit or secure this contract, that sihe 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. Winter & Co. 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 Winter & Co. 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 Winter & Co. 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 Winter & Co. Winter & Co. shall
be solely and entirely responsible for its acts and for the acts of Winter & Co.'s agents,
employees, servants and subcontractors during the performance of this contract. Winter &
Co. 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 Winter & Co. and/or Winter & Co.'s employees engaged in the performance of the
services agreed to herein.
8. Indemnification. Winter & Co. 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, 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 Winter & Co, any subcontractor of Winter & Co, or any officer,
Contract for Services: Commercial Design -Winter and Company Page 2
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employee, representative, or agent of Winter & Co. or of any subcontractor of Winter & Co,
or which arises out of any workmen's compensation claim of any employee of Winter & Co.
or of any employee of any subcontractor of Winter & Co. Winter & Co. 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 Winter & Co, 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 act, omission, or other fault of the City, its officers, or its
employees, the City shall reimburse Wmter & Co. for the portion of the judgment
attributable to such act, omission, or other fault of the City, its officers, or employees.
9. Winter & Co.'s Insurance. (a) Winter & Co. 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 Winter & Co. pursuant to Section 8 above. Such
insurance shall be in addition to any other insurance requirements imposed by this contract
or by law. Winter & Co. 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) Winter & Co. shall procure and maintain, and shall cause any subcontractor of Winter &
Co. 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 al11iability, claims, demands, and
other obligations assumed by Winter & Co. 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.
Comprehensive Automobile Liability insurance with minimum combined single
limits for bodily injury and property damage of not less than three-hundred-thousand
($300,000.00) each occurrence and three-hundred-thousand ($300,000.00) aggregate
with respect to each Winter & Co.'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.
( 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 Winter & Co. No additional insured endorsement to the policy
required above shall contain any exclusion for bodily injury or property damage arising
from completed operations. Winter & Co. shall be solely responsible for any deductible
losses under any policy required above.
Contract for Services: Commercial Design -Winter and Company Page 3
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(d) The certificate of insurance provided by the City shall be completed by Winter & Co. '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 Winter & Co. 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 Winter & Co. to City upon demand, or City may offset the cost of the premiums against
monies due to Winter & Co. 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
$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 Winter & Co. for inspection during normal
business hours. City makes no representations whatsoever with respect to specific coverages
offered by CIRSA. City shall provide Winter & Co. 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
Winter and Company:
Nore Winter
Principal
Contract for Services: Commercial Design -Winter and Company Page 4
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City of Aspen
130 South Galena Street
Aspen, Colorado 81611
1265 Yellow Pine Avenue
Boulder, CO 80304
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.
Winter & Co. 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 Winter & Co. to which the same
may apply and, until complete performance by Winter & Co. 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.
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.
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~-Ik
CITY OF ASPEN, COLORADO:
~~~
Mafor Helen K. Kland
Date: J~/z8/~(?
L-(
ATTESTED BY:
WITNESSED BY:
Winter and Company:
~/~
"'Nore Winter, Principal
Date: f2I: 3<, z CJ~
Contract for Services: Commercial Design -Winter and Company Page 6
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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 lhe 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: Commercial/Lodging Design
Contractor: Winter and Company
By: ,~/:/IU~t{--j
Title: &d~
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