Loading...
HomeMy WebLinkAboutresolution.council.039-07 RESOLUTION #'3~ (Series of 2007) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND CLIMATE CONTROL COMPANY SETTING FORTH THE TERMS AND CONDITIONS REGARDING WHEELER BOILER REPLACEMENT 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 Climate Control Company, 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 Climate Control Company regarding Wheeler Boiler Replacement, 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: ~ /~ C:;C07 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 ~ll 't) lco-=r AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Climate Control, ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: Scope of Work. Professional 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. Completion. Professional 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 June 19, 2007, Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional'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 Professional. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $177,829.00 . Professional 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 Professional within ten days from receipt of the Professional's bill. 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. Sub,Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional 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. Termination. The Professional 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 the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional 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 Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. Covenant Against Contingent Fees. The Professional warrants that slhe has not employed or retained any company or person, other than a bona fide employee working for the Professional, 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. 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, Professional 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 Professional 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 Professional. 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 Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional 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 Professional andlor Professional's employees engaged in the performance of the services agreed to herein. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self,insurance pool, from and against all liability, ciaims, 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 the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Profession ai, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handie, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, 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 the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. Professional's Insurance. (a) Professional 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 Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional 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) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims, made policy, the necessary retroactive dates and ex1ended 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 seif,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 compieted operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The poiicy 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 Professionai's owned, hired and non,owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (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 insur, ance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shail be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exciusion for bodily injury or property damage arising from completed operations. The Professional shall be soleiy responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a materiai 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 ail monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional 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 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. 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 normai business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professionai reasonable notice of any changes in its membership or participation in CIRSA. Completeness of Agreement. It is expressiy 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. Notice. Any written notices as called for herein may be hand delivered to the respective persons andlor addresses listed below or mailed by certified mail return receipt requested, to: City: City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Professional: Climate Controi David Zilar PO Box 1042 Glenwood Springs, CO 81602 Non,Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibiiity, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this ccntract. Professional agrees to meet all of the requirements of City's municipal code, Section 13,98, pertaining to non,discrimination in employment. 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 ccnstitute 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 ccndition, the City shaH be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. Execution of Agreement by 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. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, ccnditions, 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 aiteration, 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 shail be deemed an original on the date hereinafter written. [SIGNATURES ON FOLLOWING PAGE] ATTESTED BY: ~4ec CITY OF ASPEN, COLORADO: By ~ I,?~ Title ~::wr ~ ~~ Date: SP~PT PROFESSIONAL: Date: $, /: (/ 7' n ~ ' . I V;. ,I.';;'; ::l;;;,~ ~~;:TRC, ~.';"~ ';"V"I~~~ "".VI.V' ~LI.ATE ONTROL OIfPANY OF QLENWOOO SPRINGS 1537-130 ROAD P,O. BOX 1042 GLENWOOD SPRINGS CO. 81802 PHONE: (970) 945-2326 FAX: (970) 945-8126 DATE March 30, 2007 PROPOSAL SUBMITTED TO: CIil' of Aopen, P""""'"'ng 130 SOuth Galena Street AIpon CO 81811 WORK TO BE PERFORMED AT: W_. Oporl Houle CIil' Projlcl'2007-018 Wheeler boiler plOject We hereby pro_ to fumiah tho mollrioll Ind Iobor n-IY lor tholnl1llllltlon oil Doolgn /BuIld hydfonlo system, The hydronle system Is boHd on It. opocIfIc:otiona _ ou1linod In tho 1_ to bid *"pplled 10 our oIlIce, W. wm fumleh and mill 3Ia. Patterson Kelley Mach, C-l060 mod"la1lng high Iffioleney boilers. AA oddltlonol clrc"1lIlor wll bellddld to IIICh bolle, to InN! tile _ roq"irlmlnll fo, tile eqlllpment SIIInlou _I IIIntIng wm be 'naIIIlod In thl OlClIIIng chile, ond frosh II' wiD be pipld directly to eech boner from the Ildltlng olltlldo II' duo!. The exi$tlng boill' will be d_mbled and the ocrop """,,"aI will be I1onsported to a facility for JOCYCIIng. General Contractor, owner, ownlrlll1lpruentlltlvl Ind or IrchiteCt need to be IWInt thIt aoffitI, "'- and/or drop oemngo may be I1ICIIIllI\' to allow for propol1y ._ plplngond or dllCtinglventing. Propoool to including tho following: . COORDINATE MECHANICAL NEEDS AND INSTALJ..ATIONWIGENERAL CONTRACTOR. . PROVlM"ERRORS & OMIIISSIONS INSURANCE' WHICH PROTECTS OWNER AND G.c. FROM DESIGN RAWS AND COll&RS THE COST OF THE REMEDY. PROVIDE O&M MANUALS. . TRASH REMOVAL HYDRONIC EQUIPMENT . (3) __. KO'1Iy Moeh C-101O bolloro . (3) 0..._ lMHO/4 Cln:ulalan . (1) 4" High velocity Splrovent . Co~r piping. Vlitvel: and controls to make a complete opel'ltlng syttem EXHIBIT "B" to Professional Services Agreement Rate Schedule For the proposed sum ot NEW BOILERS PUMPS ACSES80RlES 'S 88 381.00 INSTALLATION S 101 000.00 BONDING S 8 488.00 TOTAL $ 177,828.00 ~ay. t. lUU'1 ~ 1:41AM 1111"'11. U.Lvvr 1..JJf'\IYI lLlMA! t lUI11 ~UL lUIV'"ANY v 1 j t VI "-.11 Lll I~O, 001..:.j L 11V, .JUJU I. L Certification and Supplemental Conditions to Contract for Services - Conformau.ce with ~8-17.5.101. et sell. Puroose. 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 "I11egal 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 perfOtDl. 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 rupplemental 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" melillS the basic pilot employment verification program created in Public Law 208, 1041h Congress, as amended, and expanded in Public Law 156, IOglh Congress, as amended, that is administered by the United States Depar1ment 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 end a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specifio en~ product other than reports that arc 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 tUnc: (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, :ceived Time May, 8, 2007 11:40AM No, 8840 \J 1 I I VI II" I Lll No, SSO ' 4 11\,1. .IV ~v I,.,. ~,~~: ~: J~~71 \! ~1~~,M CLIMATE CONTROL COMPANY and consequential damages to the City of Aspen ariging out of Contractor's violation of Subsl:Ction 8. 17.5-102, C.R.S. . PubUc Contract for Services: Contractor: 6IA M ~-fp By: ((~ A c.- ;tjA' "- Title: t/ j? //A tMt'O/ &:J~4-~ , ~ JPW- saved, SI312006-$67-M:\city\cityany\co.tIllctlfurms\cettificanou. htHI6-l343,dOCl Received Time May, 8, 2007 11:40AM No, 8840 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Climate Control, ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: Scope of Work. Professional 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. Completion. Professional 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 June 19, 2007. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional'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 Professional. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $177,829,00. Professional 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 Professional within ten days from receipt of the Professional's bill. 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. Sub,Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional 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. Termination. The Professional 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 the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional 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 Professional, and the City may withhold any payments to the Professional for the purposes of set,off until such time as the exact amount of damages due the City from the Professional may be determined. Covenant Against Contingent Fees. The Professional warrants that slhe has not employed or retained any company or person, other than a bona fide employee working for the Professional, 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. 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. Professional 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 Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the resuits obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. 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 Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional 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 Professional andlor Professional's employees engaged in the performance of the services agreed to herein. Indemnification. Professional 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 the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional 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 Professional, 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 the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. Professional's Insurance. (a) Professional 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 Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional 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) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional 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) WotkelS' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and EmployelS' 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 shail 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 Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (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 shail be primary insur, ance, 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 Professional No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional 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 the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional 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 Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional 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 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. 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. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties reievant 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. Notice. Any written notices as cailed for herein may be hand delivered to the respective persons andlor addresses listed below or mailed by certified mail return receipt requested, to: City: City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Professional: Climate Control David Zilar PO Box 1042 Glenwood Springs, CO 81602 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-dlscrimination in employment. 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, untii 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. Execution of Agreement by City. This agreement shail 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. 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, iliegal or unenforceable it shall not affect or impair the validity, legality or enforceabiiity of any other provision. (c) The parties acknowiedge 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 shali be governed by the laws of the State of Coiorado 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 shali be deemed an original on the date hereinafter written. [SIGNATURES ON FOLLOWING PAGE] ATTESTED BY: ~)~ By: Title: Date: PROFESSIONAL: Date: $, 7." 7 nv', I \I;. .L.:!,; :.J~~,;.; ~~:TRC.~.' ;"'; ',:.....".~~~~ "v"', nil I "V,VL'J' ~LIMATE ONTROL OMPANY OF GLEN'NOOO SPRINGS 1537,130 ROAD P,O. BOX 1042 GLENWOOD SPRINGS CO. 81602 PHONE: (970) 945-2326 FAX: (970) 945-8128 DATE March 30, 2007 PROPOSAL SUBMITIED TO: CIly of Aspen, Pul1:hosi"ll 130 SOuth Galena 51.... Aspen CO 81611 WORK TO BE PERFORMEO AT: Wheeler Opera House CIly ProJleU 2007.()16 Wheeler boiler project We hereby propose to fumiah the meterials and labor n8C8888ry for theln8tallatlon of. Dnlgn /BuIld hydronle oyslem. The hydronle oyotem Is based on tho speci1leoliono os oullinod In tho In'lllation to bid supplied to our office. We Will fumlsh and instal 3ea. Patterson Kelley Mach. C-1050 modulating high efficiency boilers. M Bdditlonal circulator wi. be added to each bODer to meet the flow requirements for the equipment Stainleu litHl 'l8ntlng will be Installed in the existing chase, and fresh air WID be piped directly to each boiler from lhe -"ll outsido Ilr duet The existing boiler win be disassembled and the scrap material will be transported to a facility for recycling. Genel'al Contractor, owner, ownel'J representati\te and or architeCt need to be aware that soffits, chases amUor drop ceftings may be necessary to alkM' for property sized piping and or duetinglventi"ll. PropoAl to Including the following: . COORDINATE MECHANICAL NEEDS AND INSTALLATION WfGENERAL CONTRACTOR. . PROVlDI! "I!RRORS & OMMfSSIONS INSURANCE" WHICH PROTECTS OWNER AND G.e. FROM DESIGN FLAWS AND COVERS THE COST OF THE REMEDY. PROVIOE O&M MANUAI.S. . TRASH REMOVAL HYDRONIC EQUIPMENT . (3) Patterson Kelley MilCh c..1050 bone,. . (3) Gftlndfoe 5(HMJI. CIrculators . (1) 4" High v.loclty Splrcwent Copper pipIng, valves and controls to make a complete operating sy$tern EXHIBIT "B" to Professional Services Agreement Rate Schedule For the proposed sum of. NEW BOILERS. PUMPS ACSESSORlES I 68 361.00 INSTAlLATION $ 101 000.00 BONDING $ 8 488.00 TOTAL $ 177,829.00 ~Ma. y, 1111,1. iL L V V / I I : 4 / AM U,LVVI11'Jlr"" l,IIVIA't lUIVIKUL lUIVWMY \.11 I I VI ,",I,) I L 11 IVO.OHj 11V, JUJU L " L Certification and Supplemental Conditions to Contract for Services - Conformau.c~ with 68-17.5.101. et sea. Puroose. During the Z006 Colorado legislative session, the Legislature passed House Bill 06.1343 that added a new artiole 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 II. subcontJ:actor who knowingly employs or contracts with an illegal alien to perfoun 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 ConditiollS 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 incolporated 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, 1 Q41h Congress, as amended, and expanded in Public Law 156, 10glh 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 ofla.bor, time, or effort by a. Contra.ctor or a subcontractor not involving the delivery of a specifio 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 tbis document, Contractor certifies and represents that at this tUnc: (I) Contracto:r does not knowingly employ or contract with an illegal alien; and (Ii) Contractor lwi participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. ~ceived Time May, 8, 2007 11 :40AM No, 8840 'MaY.'S. 2007 11:47AM ItIfl I. U. l. V V I 11..) 7 fllll CLIMATE CONTROL COMPANY \,11 I I VI (lvl Lit No.8843 p, 4 I1V, .IV JV I I i 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: Contractor: {!.,u.u. ca.-fp By:(Z~AO- !fA Title: t/ j/ ~-M C'hm/ &J~a~ -' rPw- saved; SI312006-:l67-Mlcily\l:ityanylcontracIlfollIlSlc<:ttificanoo. h1Hl6-1343 ,doo Received Time May. S, 2007 11:40AM No, 8840 AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Climate Control, ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: Scope of Work, Professional shall perfonm in a competent and professional manner the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated herein. Completion. Professional 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 June 19, 2007. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the perfonmance of Professional'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 Professional. Payment. In consideration of the work perfonmed, City shall pay Professional on a time and expense basis for all work perfonmed. The hourly rates for work perfonmed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $177,829.00. Professional shall submit, in timely fashion, invoices for work perfonmed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 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. Sub,Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional 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. Tenmination. The Professional or the City may tenminate this Agreement, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the tenmination. 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 the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional 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 Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. Covenant Against Contingent Fees. The Professional warrants that slhe has not employed or retained any company or person, other than a bona fide employee working for the Professional, 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. 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. Professional shall be, and shali 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 Professional 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 Professional. 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 Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all iiability 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 Professional andlor Professional's employees engaged in the performance of the services agreed to herein. Indemnification. Professional 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 the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional 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 Professionai, 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 shali reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. Professional's Insurance. (a) Professional 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 Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional 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) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional 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 ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non,owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (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 insur- ance, 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 Professional. No additional insured endorsement to the policy required above shall contain any exciusion for bodily injury or property damage arising from completed operations. The Professional 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 the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional 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 Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional 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 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.RS., as from time to time amended, or otherwise available to City, its officers, or its employees. 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. 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. Notice. Any written notices as called for herein may be hand delivered to the respective persons andlor addresses listed below or mailed by certified mail return receipt requested, to: City: City Manager City of Aspen 130 South Galena Street Aspen, Colorado 81611 Professional: Climate Control David Zilar PO Box 1042 Glenwood Springs, CO 81602 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. 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. Execution of Agreement by City. This agreement shall be binding upon ail 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. 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 aiteration, 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. [SIGNATURES ON FOLLOWING PAGE] ATTESTED BY: CITY OF ASPEN, COLORADO: ~~BY. ~ /,/4.-./ Title: ~ .P./~,~ Date: sf PROFESSIONAL: WITNESSED BY: ~e broJ~ ~ Title: Date: $, /, c/ 7 "V" I v~. ."~;~:J~~.:.:~~;:TRC.~.I~"~ '::'';.~:'':....~ "V"" "" I "....v".)! gLllfATE ONTROL OIfPANY OF GLENWOOD SPRINGS 1537,130 ROAD P,O. BOX 1042 GLENWOOD SPRINGS CO. 81602 PHONE: (970) 945-2326 FAX: (970) 945-8128 DATE March 30, 2007 PROPOSAL SUBMITTED TO: City of Aspen, Purchasing 130 South Galena street Aspen CO 81511 WORK TO BE PERFORMEO AT: Wheeler Opera HolJae City Pro)ocl' 2007-015 Wh_r boiler project We hereby propose to furnish the mllterillls lnet labor neceaaary for the ilstallatlon of. DnJgn /Build hydronlc system. The hydronlc syatem Is band on tilt specifications .s outlined In the Invitation to bid suppIled to our offlce. We 'NIII furnish and instal 3ea. Patterson Kelley Mach. C~1 050 modulating high efficiency boilers. An additional circulator wi. be added to each boner to meet the now requirements fOr the equipment St8lnlais steel venting will b& Installed in the exlstJng chase, 100 fresh air will be piped directly to each boiler from the existing outside Ilr duct The existing boiler will be disassembled and the scrap material wID be transported to a fadllty for rocycling. General Contractor, owner, owners representatIVe and or an:hitect need to be lIWSre that soffits, chases and/or drop cemng& may be necessary to aUow for property sized pIping and or ductinglventing. Proposal to Including tho following: . COORDINATE MECHANICAL NEEDS AND INSTAl.LATlON W/GENERAl. CONTRACTOR. . PROVIDE "ERRORS & OMMISSIONS INSURANCE" WHICH PROTECTS OWNER AND G.c, FROM DESIGN RAWS AND COVERS THE COST OF THE REMEDY. PROVIDE O.M MANUA1.S. . TRASH REMOVAl. HYDRDNIC EQUIPMENT . (3) Plitterson Kelley M.ch C-1050 bone.. . (3) Grundf08 50-8014 Clrculltorl (1'." High voloclty Splrovont . Copper piping. valves Ind controls to make a Gomplete opel1lung system EXHIBIT "B" to Professional Services Agreement Rate Schedule For the proposed sum of. NEW BOilERS PUMPS ACSESSORlES $ 58 361.00 INSTALLATION $101 000.00 BONDING $ 8 488.00 TOTAL $177,829.00 foI!ay, ~. LUU/111:0/AIVI 11I(11, U.LVVI 1...IJ1"I111 l'_lIV:Alt lUI11KUL lUIV'~ANY V 1 I I VI /"'11..1 I LII '\'0, OO!.j-J r, L IlV, .JUJU I. L Certification and Supplemental Conditions to Contract for Services - Conformuce with ~8-17.5.101. et se(l. Puroose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06.1343 that added a new artiole 17.5 to Title 8 of the Colorado Revised Statutes entitled "illegal Aliens - Public Contracts for Services." This new law prolu'bits all state agencies and politioal 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 II. 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 employmont verification program created in Public Law 208, 1041h Congress, as amended, and expanded in Public Law 156, 10S1h 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" moans 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 specifio en4 product other than reports that are merely incidental to the required performance. PURSUANT TO SECTION 8-17.5-101, CR.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. lceived Time May, 8, 2007 11:40AM No, 8840 Vl11 VI n\JILI' No, 8843 11V. .;V.JV p, 4 Ma y. Illn I. 8. 2007 11 :47AM v. L V V I 11..)] nm CLIMATE CONTROL COMPANY " ~ and comequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8- 17.5-102; CRS. . PubUc Contract for Services: Contractor: CL<. M taft By:6~Ac.- ;fA Title: t/ j/ ~L;.1 Qljm/ &:;~~~ j JPW- saved; 8/312006-S67"Ml<ily\Gityany\con""ctlfurms\cortificariu.. hl>-06-1141 .d"" Received Time May, 8. 2007 11:40AM No, 8840 MAINTENANCE BOND #323955 KNOW ALL PERSONS BY THESE PRESENTS, That we, the undersigned, as Climate Control Company Inc , of Glenwood Springs, CO Principal, hereinafter referred to as "Principal", and American Contractors Indemnity Company as a corporation organized under the laws of the State of California , and qualified to transact business In the staIB of Colorado, as "Surety" are held and firmly bound unto the City of Aspen, Colorado, as oblgee, hereinafter referred to as "City," in the penal sum of one hundred seventy,seven thousand eight hundred twenty'nine and 00/100 DoAars ($ 177,829.00 I, lawful money of the UnRed Stales 01 America, for the Payment of which sum, well and InJIy to be made to the City, we bind ourselves, and our hei's, executDrs, administrators, successors, and assignees, jointly and severally, by these presents: WHEREAS, said Principal has ent8llld Into a written Contract with the obigee dated May 4 20..QL, for furnishing all equlpmant, Wheeler Opera House Boilers labor, tools and materials for: in accordance wRh datalled plans and specifications on fila in the office of the City Clerk of said City, a copy of wI1ich Contract is attached hereto and made a part hereof. NOW THEREfORE, The conditions of the foregoing obfgatlons are such that if the saicf Principal shaH well and truly perform aD the covenants and condilions of this Conl/aCt aI the part of Hid Principal to be performed, and. repair or repl8C8 all defectll for a period of two year(s) IS provIdad herein, and protect and save harmless tha City of Aspen, Colorado, from all loss and damages to life or property suffered or sustained by any person, firm or corporation, caused by saJd PrIncipal or his agents or his employees, In the performance of said work, or by, or in consequence of any negligence, carelessness, or misconduct in guarding and protecting same, or from any improper or defective equipment or materials used in the woll<, or othar damages, costB and axpen_ and sat forth in sucl1 Contracl!l, then this obligation shall be void otherwise to remain in ful force and effect in law. This Bond guarantees that the malerlal and equipment fumlshed and used, and workmanship emplo~ In tha performance of the well< described in tIlis ContlaCt wiI be of such characler and quality as to insure ilia be free frOm all defects and In continuous good order end in a condition satisf'aclory to the Governing Body of the City of Aspen for a period of two year(s) from the date of tile Issuance of the Certificate of Completion. This Bond guarantees that the said Principal wiU keep and maintein the subject work without additJonal charge or cost to the City of a period specified, and make suc~ repairs or replacement of any defeCtive construction es tile City mey deem necessary. -~- ~@ American Contractors Indemnity Company 9841 Airport Blvd., 9" Floor Los Angeles, California 90045 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That American Contractors Indemnity Company of the State of California, a California corporation, does hereby appoint, David Lehr of Lakewood, Colorado its true and lawful Attomey(s)-in-Fact, with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an Amount not to exceed $ *** 3,000,000.00 *** . This Power of Attorney shall expire without further action on June 29,2009. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of AMERICAN CONTRACTORS INDEMNITY COMPANY at a meeting duly called and held on the 6'" day of December, 1990. "RESOL VED that the Chief Executive Officer, President or any Vice President, Executive Vice President, Secretary or Assistant Secretary, shall have the power and authority --- _To.J1PP9(ilLAitorney(s)-in-Fact and to authorize them to execute on-lJe1ia1fof-J~-Ciinijjiiny, and attach the seal of the Company thereto, bonds and undertakings, contracts of indemnity and other writings o&tij;atory in the niIture thereof and, 2. To. remov~l al..J!1JyJilJle,.any-such Attorney-in-Fact and revoke the autharity given. RESOLVED FURTHER, -loot the signatures.oJ such officers and the seal af the Campany may be affixed to. any such Pawer af Attarney ar certificate relating thereto. by facsimile, and any such Power af Attarney ar certificate bearing such facsimile signatures ar facsimile seal shall be valid and binding upon the Campany and any such pawer sa executed and certified by facsimile signatures andfacsimile. sea! shall be valid and binding upon the Compan.v in the future with respectta !i_ny band ar undertaking to which it is attached. " IN WITNESS WHEREOF, American Contractors Indemnity Company hall''''ause<ths seal to be affixed hereto and executed by its Executive Vice President on the 9'" day of January, 2007, AMERICAN CONTRACTORS INDEMNITY COMPANY By: ~. STA TE OF CALIFORNIA ~ M:m'1::5. Pessin,&~utive Vice President WITJ\IESS mvhand andJ.ifficial seal. ~... ~= i;?~ Signature of Notary My Commission expi,\>slune 29. 2.009 I, Jeannie 1. Kim, Corporate Secretary of American Contractors Indemnity Company, do hereby certifY that the Power of Attorney and the resoiution adopted by _the Board of Directors of said Co1t1pany as set forth alloc\'e,.are-tm~'ID1d correct transcripts thereof and that neither the said Power of Attorney nor the resolution have been rllVoked and the~~ fii full feIee and effect. {."..., .~..~ IN WITNESS HEREOF, I have hereunto set my hand this B day of" _..d2a~~;; ~~i:E. F"E;~~;;.. , -Q~m.No.1593578 il ~~. .. ... NOTARYPUBllC.CAUFORNIA Ii' o ". lOSANGEl.ESCOUNTY- i T T.~ ~.~ y", ~ :~:~ E:: J:~ :g:22~9 ~ f Bond No. ~2?;'9'iC; Agency No, 9027 Rev. POA03/22!06 PERFORMANCE BOND #323955 KNOW ALL PERSONS BY THESE PRESENTS: That we, the undersigned, as. Climate Control Company Inc V"-....I'QfIJlI~ having a legal business address at 1537 County Rd 130 Glenwood Springs, CO 81601 ~~n. r-.rwnnp.IX" JIll as PrIncipal, hereinafter caned 'Prlnclpal', and a corporation American Contractors Indemnity Company \...,. D1liWW1)'l 9841 Airport Blvd., 9th FL Los Angeles, CA 90045 v-__OI'WIIryJ a corporallon llIllanlled under the laws of the Slate of California . and qualifiec:llo Iransact business i1 the State of Colorado, hereinafter called 'Surely", are held and firmly bound unto the City of Aspen, 8 Colorado home rule municipality, es Obligee, hereInafter called 'CIty", .In the amount of: one hundred seve~ty-seven thousand eight hundred twenty'nine and 00/100 ($ 177,829.00 l, In lawful money of the United Slates for payment whereof Principal and Surety bind tllemsel\leS, their helra, executors, adminlstrBlora. SUcceSSOlS end assigns, jointly and severally, firmly unto these present. WHEREAS, Principal hIlS by wrllten agreement dated Mav 4 , 20.QZ, entered into a contracl with City br Wheeler Opera House Boilers in accordance with the Contracl Documenlll which Conlracl DoctJmenta Is by reference made a part hereof, and Is hereinafter referred 10 es the Contract. NOW, THEREFORE, if Principal shall wel~ truiy and faithfully perform its duties, all the undertakings. covenantll, terme, condlllons and agreements of aaid Contract during the original term thereof. and any' extensions thereof which may be granted by the City, with or without notice 10 the Surety and during the guaranty perJocl, end If Prlncipel shall setisfy all claims and demandS incurred under such Contract, and shall fUJly.lndemnify and save harmless City from all costs and damages which it may sutl'er by reason of faikJre to do so, end shllll reinblJ/'!ll and repIIY. the City ell OUtley and expense which the City may Incur In making good any default, then thl. oblgatlon shal be void; othelWise it sha' remain in full force and effect. The Surely hereby waives notice of any aI1eralion or extension of time made by the City, Whenever Principal shaH be, and declared by City to be in defaUM under the Conlracl. the City having performed Cily's obligation hereunder, the Surety mey promptly remedy the defauM or shall promptly: (1) (2) Complete the Contract in eccordance with its lemis and condMlons, or Obtain a bid or bids for completing the Contract in accordance wnh Its terms and conditions, and upon determination by Slftlty of the lowest responsible bidder, or, if the City eilids, upon determination by the City and Surety jointly of the lowest responsible bidcfer, al11lnge for a contract between such bidder and City, and make available as work progresses (even though there should be a defaul or succession of defaults under the Contract or Contracts of completlon arranged under this paragraph) sunicienl funds to pay the cost 01 completion less the balance of the contract price, Including other costs and damages for which the Surety ma)' be IlabkI hereunder, the amount set forth In the first paragreph hereof. The term 'balsnce of the Contract price' as used In this paragraph, shell mean the total amount payable by City to Principal under the Contracl and any amendments therlllo, less the amount properly paid by City to Princ;ipal. (3) Any' contract or succession of contracts entered into hereunder tor the completion of the Contract, shall also be subjecllo this bond as part of the original Contract obllgationa. (b) After the expiration of one (1) year following the dale on which Principal ceased work on said Contract, it being understood, however, thai il any limitation embodied in this Bond is prohibited by 9/lY law conlrolling the construction hereol, such limitation shall be deemed 10 be amended so as to be equal to the minimum period of limitation permilted by such law. (c) Other than In a slate of competent Jurisdiction in and for the County of Pitkin, Slate of CoJollldo. 4. The amount of this Bond shall be reduced to the extent of any payment or payments made hereunder, inclusive of the payment by surety of liens or claims which may be fill!d of record against the improvement(s), whether or not claim for the amount 01 such lien be presented under and egainst this Bond, 5. This Bond is Intended to be In satisfaction of, and In add~ion to, the bond required pursuant to Section 38-26- 105, C.R.S., as amended. 8. No final settlement between the City and Principal shall abridge the right of any beneficiary hereunder, whose claim may be unsatlsned, SIGNED AND SEALED this 8th day of May 2007 ..J.99-' . Attest. d~ By: SURETY: By:. David Le r Title: . Attest (seal) Attorney'in-Fact NOTE: Accompany this bond with certifled copy of General PllWer of MDmay from the Surely Company to include the dale of the bond. (Dale of Bond must not be prior to date 01 Conllact). If Principal is a Partnership, an partners should exacuts Bond. YS1-971.doc '"YS1 pog.: 2 The said Principal shaH not be required to maintain any part of the Improvement under this guarantee which, after its completion and acceptance shall have been removed or altered by the City or ns agenl SIGNED AND SEALED this 8th day of May 2007 ,199_. PRINCIPAL: ~ By: Tille: By: David Lehr TiUe; Attest (seel) SURETY: American Contractors Indemnity Company Attorney-in-Fact (Accompany this bond with certified copy of General Power of Attorney from the Surety Company to include the date of the bond.) MB1.971,doc ""MS1 Pa~e; 2 This bond is intended to be in salis faction of, and in addition to, the bond required pursuant to Section 38-26- 106, C.R.S., as amended, This bond, as a penally and indemnifICation bond, shall also enlitle City to recover as part of the completion of the Contract or the payment of an~ labor or malarial costs hereunder, actual and consequential damages, liquidated and unfiquidated damages, costs, reasonabie attorneys fees and expert witness fees, including, withoutlimillltiOll5, the fees of engineering or archffectural consultants. Surety, for value received, hereby stipulates and agrees that to Indemnify and save harmless the Cily to the extant of any and 8// payments In connecfun with the Carrying out of the contract which the City may be required to make under the law by any rea!Oll of such failure or defauff of the Principal. Further, Surely and Principal shall protect, defend, Indemnify and save harm I""" the City's offICers, agenls, servants, and employees from and against all claims and actions and all expenses incidental to !he defense of such cleims or actions, based upon or arising out of Injuries or death of pBllOns or damage to prcperty caused by, or sustained in connection with, !his Contract by conditions crested thereby, and on request of the City wftt assume the defense of any claim or aellon brought against the City. No right of action shOll accrue on this Bond to or for the use of any person or corporallon other than the City named herein or the empl~s, agents, administrators or successors of City. SIGNED AND SEALED th C4 PRINCIP . May 2007 ..m::::...' Alles!: By: Atfest demnity Company (seal) SURETY: Attorney-in-Fact NOTE: Accompany this bond wllh certifled copy of Genera) Power of AlIomey from the Surely to Include the dale oftha bond. (Date of Bond must not be prior 10 dale of Contract.) If Principal is Partnership, all partners should execute Bonet PR'-C~71 tf~ ..PA1 P.!Ioe2 PAYMENT BOND #323955 KNOW ALL PERSONS BY THESE PRESENTS: That we, the undersigned, as, Climate Control Company Inc v...l'lncpa......,,"J address at 1537 County Rd 130 Glenwood Springs, CO 81601 (PMClPIll!odClreU) having a legal business a , as Principel, hereinafter celled 'Princlpal'. and (LOlJlU'......'.~nnp.or .........-1 American Contractors Indemnity Company \~'~l corporation 9841 Airport 8Ivd., 9th FL Los Angeles, CA 90045 a corporation organized under the laws of the Stele of California , and qualified to lIansact business in the . S1alB of Co1Or8do, h\ll8klafter called 'Suret(, alll held and ftrmlY bound unto the City of Aspen. a Colorado home role munlcipatity, as Obr'9ee, hereinafter caUed 'City', in the amount of: one hundred seventy-seven thousand eight hundred twenty-nine and 00/100 ($177,829,00 ), in lawful money of the Un~ed Stales for payment whereof Prtncipal and Surety bind themselves, their heirs, executors, administrators. successors and assigns, jointly and severally, firmlY unto these present WHEREAS, Princical has Ill' written aareement deled May 4 , 20~ entered Into a contract with the City for a project ritied: _~heeler Oper~ .Hgl!5!! Boilers' ;. ~..: . ... (omiecl no. 2007,016 ,. _.....-..1. in accordance with the Contract OOcilments wnich Contract Documents is by reference made a part hereof, and is heJ1!inaller referred to as the contract. (~S.MCRn) NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such th8~ if Principal shall promptly make payment to all claimants hereinafter defined, for allabor and mat8rial used or reasonably required for the use In \he performance of the Contrac~ then this obligation shall be void; otherwise it shall remain in full force and effect, subject. hO\Never, to the following condftions: 1. A Claimant is defined as having a direct contract with tne Principal or with subcontractor of the Principal for labor, materi8l. or both, used or reasonably required for the pertormancs of the Contract, labor and materiel belng construed to Include th8I part of wafsr, gas, '{XNIIer, light heat oil, gasoline, telephone S81Vice or rental equipm ent direcUy appllcable to the Contract. . 2. The abave-n1WTl8 Principal and SUrety hereby jointly and severally agree with the City thai fNery claimant as herein defined who has not been paid in fun befOl9 \he expiration of ninety (90) days after the date on which the last of such claimants work or labor was done or performed or materials were furnished by such claimant, may sue on this bOnd for U58 of such suli1s as may be justly due claimant, and have execution thereon. The City shaU not be liable for the payment of any eo&1s or expenses of any such suft. 3. No suit or action shall commence hereunder by any claimant: (a) Unlells claimant, other than one having a direct contract with the Principal shall have given wriltl!n notice to any of the following: The principal, Ih8 City. or the Surety above named, within ninety (90) days after sue/l claimant did or performed the last of the work or labor, Dr fumlshecl the last of the material for which said claim Is made, slating with substantial acx:uracy the amount claimed and the name of tne party to whom the materlals were furnished, or for whom the work of labor was done Dr performed. Such notice shall be served by mailing tile same registered maW or certified mail, postage prepaid, in an envelope addressed to the Principal, City or Surety, at any placa where an office is regularly main1llined for the tranSaction of business. or served In any manner in which legal process may be served In the State of. COloradO. YBl-971,dOC -VBI Page: I