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HomeMy WebLinkAboutresolution.council.087A-06 RESOLUTION 8B A (Series of 2006) "'., A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND LONG ENERGY SOLUTIONS SETTING FORTH THE TERMS AND CONDITIONS REGARDING MECHANICAL DESIGN OF THE ENERGY EFFICIENT PROJECTS FOR THE ARC 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 Long Energy Solutions, 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 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Long Energy Solutions regarding the mechanical design of the energy efficient projects for the ARC, 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: II; - d 3- () 6 /f5~'~~ Helen Kahn Klanderud, Mayor 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 October 10,2006. ~d ~ --<'lv- Kathryn S. Koc , City Clerk AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City"), and LONG Building Technologies, Inc. dba LONG Energy Solutions, ("LONG"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. LONG 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. LONG 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 substantially complete no later than December 31.2006. Upon request of the City, LONG shall submit, for the City's approval, a schedule for the performance of LONG's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the LONG. 3. Payment. In consideration of the work performed, City shall pay LONG for all work performed a sum not to exceed $49,129.00. LONG shall submit, in timely fashion, progress billing 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 LONG within ten days from receipt of the LONG's bill. 4. Assil!l1abilitv. Both parties recognize that this contract is one for engineering services covering several building disciplines to achieve energy conservation. The City agrees that the LONG may use at its sole discretion subcontractors and/or subconsultants with specific expertise to assist the LONG in the performance of the Scope of Work. The LONG agrees that subcontracting shall not relieve LONG of any of the responsibilities or obligations under this agreement. LONG 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 LONG 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. 5. Termination. LONG or the City may terminate 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. PSI-971.doc Page 1 The City will pay LONG for any and all work completed up to the time of notice of termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by LONG pursuant to this Agreement shall become the property of the City. Notwithstanding the above, LONG 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 LONG, and the City may withhold any payments to LONG for the purposes of set-off until such time as the exact amount of damages due the City from LONG may be determined. However, LONG shall have no Professional Liability nor be liable for any errors and omissions associated with the Scope of Work nor be liable for the functional performance of the designs resulting from the Scope of Work should the City terminate this agreement or retain additional parties to implement the designs associated with the Scope of Work. - "'"',..# 6. Covenant Against Contingent Fees. LONG warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for LONG, 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. LONG 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 LONG 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 LONG. 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 LONG. LONG shall be solely and entirely responsible for its acts and for the acts of LONG's agents, employees, servants and subcontractors during the performance of this contract. LONG 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 LONG and/or LONG's employees engaged in the performance of the services agreed to herein. 8. Indemnification. LONG 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 LONG, any subcontractor of LONG, or any officer, employee, representative, or agent of LONG or of any subcontractor of LONG, or which arises out of any workmen's compensation claim of any employee of LONG or of any employee of any subcontractor of LONG. LONG agrees to PS 1-971.doc Page 2 investigate, handle, respond to, and to provide defense for and defend against, any such liability, ,. claims or demands at the sole expense of LONG, 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 LONG for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. LONG's Insurance. (a) LONG 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 LONG pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. LONG 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) LONG shall procure and maintain, and shall cause any subcontractor of LONG 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 LONG 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. (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 ($1,000,00- 0.00) aggregate with respect to each LONG's owned, hired and non-owned vehicles PSI-971.doc Page 3 assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If LONG has no owned automobiles, the requirements of this Section shall be met by each employee of LONG providing services to the City under this contract. """'" ,,Mfi# In addition, LONG or its design subcontractors shall maintain in full force and effect, at LONG's or its design subcontractor's expense, an Errors and Omissions or Professional Liability Insurance Policy in the amount of $500,000 minimum coverage. The policy shall remain in effect for the duration of the applicable statute oflimitations for claims against construction professionals. LONG shall be responsible for all claims, damages, losses or expenses, including attorneys fees, arising out of or resulting from the performance of professional services contemplated by this Agreement, provided that any such claim is attributable to bodily injury or death, or injury to or destruction of tangible personal property, or to failures of the work, including the loss of use resulting therefrom, and is caused, in whole or in part, by any negligent act, error or omission of LONG, any consultant or associate thereof, anyone directly or indirectly employed by LONG. (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 LONG. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. LONG shall be solely responsible for any deductible losses under any policy required above. ....... "",.w> (d) The certificate of insurance provided by the City shall be completed by LONG'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 LONG 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 LONG to City upon demand, or City may offset the cost of the premiums against monies due to LONG from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 -"""t"" PSI-971.doc Page 4 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 Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or rnailed by certified mail return receipt requested, to: City: Steve Barwick, City Manager Professional: John A. Tate, Vice - President Long Building Technologies, Inc. P.O. Box 5501 Denver, Colorado 80217-5501 City of Aspen 130 South Galena Street Aspen, Colorado 81611 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said 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. PS 1-971.doc Page 5 15. Execution of Agreement bv City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith- standing 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. lllegal 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 and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly 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 laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. ~. '."" "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Professional certifies and represents that at this time: (i) Professional does not knowingly employ or contract with an illegal alien; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. d. Professional hereby certifies that: ,- PSI-971.doc Page 6 (ii) LONG shall not enter into a contract with a subcontractor that fails to certify to LONG that the subcontractor shall not knowingly employ or contract . with an illegal alien to perform work under the Public Contract for Services. (iii) LONG has verified or has attempted to verify through participation in the Federal Basic Pilot Program that LONG does not employ any illegal aliens; and if LONG has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, LONG shall forthwith apply to participate in the Federal Basic Pilot Prograrn and shall in writing verify such application within five (5) days of the date of the Public Contract. LONG 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 LONG 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) LONG shall not use the Basic Pilot Program procedures to undertake pre- employment screening of job applicants while the Public Contract for Services is being performed. (v) If LONG obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, LONG shall: (I) Notify such subcontractor and the City of Aspen within three days that LONG has actual knowledge that the subcontractor is employing or contracting 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 illegal alien; except that LONG 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) LONG 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 LONG 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 PSI-97Ldoc Page 7 Services is so terminated, Contractor shall be liable for actual and consequential -. darnages to the City of Aspen arising out of LONG's violation of Subsection 8- -.,...' 17.5-102, C.R.S. (ix) If LONG operates as a sole proprietor, LONG hereby swears or affirms under penalty of peIjury that LONG (I) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federallaw,(2) shall comply with the provisions ofCRS 24-76.5-101 et 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. 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 govemed 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. [SIGNATURES ON FOLLOWING PAGE] -""" PSI-97Ldoc Page 8 ATTESTED BY: ~i4 Ji;~ UftA(:rr<f2~ CITY OF ASPEN, COLORADO: ~((~ Title: ,err).. n ~ Date: (c/ - :2- J -00 WITNESSED BY: ~Ch-- By: By: Date: Title: o~ A'1'~- ~ ~ VI'U OVL!?I~ PSI-97Ldoc Page 9 {oJ? / Of.-. , - EXHIBIT "A" to Professional Services Agreement Scope of Work ARC ENERGY EFFICIENCY PROJECTS A facility Audit of the Aspen Recreation Center has been completed by LONG Energy Solutions ("LONG"), and certain energy efficient recommendations have been identified for implementation (see attachment "A" Table 1.2 of the Audit report). 1. Recommended Projects: The projects in table 1.2 attached which are included in this Professional Services Agreement, and of which design costs pertain to, are as follows: Projects - 6.1, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.20, 6.21, 6.22. II. Design Recommendations: It will be the responsibility of LONG Energy Solutions to identify all necessary components of design pertaining to the Projects identified above in section I, and attachment "A" hereinto. A. LONG shall design all systems such that they accomplish the intended energy savings identified in the audit. B. Design of supplemental systems identified in table 1.2 shall fit current space availability and allow reasonable access by maintenance staff. - C. LONG shall provide copies of all design and construction drawings to the City of Aspen. D. Design shall include, but is not limited to: creation of all drawings and consideration of all testing, materials, labor, and installation specifications of recommended projects which have been designed. E. LONG shall be responsible for the management and oversight of all installation of designs. F. Design shall consider all access by the contractor and maintenance staff and shall not create difficult or unreasonable access for installation and future replacement. G. Design shall, whenever possible, avoid any unsightly additions of materials to the facility. H. Design shall keep in mind the intent of the City of Aspen to meet a Platinum level of LEED certifications and shall contribute ultimately towards this goal. 1. Design shall identify materials of a quality and standard with an intent such that parts will be available for the life ofthe equipment specified. J. All system designs will sequence with the current building management systems and/or any upgrades which are recommended. III. Design Approvals: All design of new or supplemental systems to existing systems will meet the approval of both the City of Aspen staff as well as LONG before proceeding with the installation of such systems. - PSI-971.doc Page 10