HomeMy WebLinkAbout2014-10 Timber Ridge Rock MitigationRESOLUTION NO. 10
Series of 2014
A RESOLUTION AUTHORIZING THE TOWN MANAGER TO ENTER INTO A
PROFESSIONAL SERVICES AGREEMENT WITH YENTER COMPANIES,
INC., FOR THE COMPLETION OF ROCKFALL MITIGATION WORK ON
TOWN OWNED PROPERTY; AND SETTING FORTH DETAILS IN REGARD
THERETO
WHEREAS, the Town of Vail (the "Town "), in the County of Eagle and State of
Colorado is a home rule municipal corporation duly organized and existing under the
laws of the State of Colorado and the Town Charter (the "Charter ");
WHEREAS, the members of the Town Council of the Town (the "Council ") have
been duly elected and qualified;
WHEREAS, the Town is the owner of certain real property generally described as
Parcel G, Amended Plat, Fifth Amendment to the residences at Briar Patch Subdivision
(the "Property ");
WHEREAS, the Town wishes to facilitate the redevelopment of the Timber Ridge
Village Apartments (the "Apartments ") consistent with the approved development plan,
WHEREAS, the Town has accepted the obligation of mitigating any rockfall
hazard associated with the Property.
WHEREAS, to accomplish the redevelopment of the Apartments the Town
desires to enter into a Professional Services Agreement (the "Agreement ") with its
selected contractor in the form attached hereto as Exhibit A.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO THAT:
Section 1. The Council hereby approves the Agreement and authorizes the
Town Manager to enter into the Agreement on behalf of the Town in substantially the
same form as attached hereto as Exhibit A and in a form approved by the Town
Attorney.
Section 2. This Resolution shall take effect immediately upon its passage.
Resolution No. 10, Series 2014
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town
Council of the Town of Vail held this 15`h day of Apri 014.
Andrew P. Daly
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Resolution No. 10, Series 2014
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THIS CONSTRUCTION CONTRACT (the "Contract ") is made and entered into this
7th _ day of Aped , 201 %by and between the Town of Vail, 75 South Frontage Road,
Vail, Colorado 81657, a Colorado municipal corporation (the "Town "), and _.Yenter
Comes , an independent contractor with a principal place of business at 20300
JiM 72. Arvada. co, 80007 ("Contractor') (collectively the "Parties ").
For the consideration hereinafter set forth, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
I. SCOPE OF WORK
Contractor shall furnish all labor and materials required for the complete and prompt
execution and performance of all duties, obligations, and responsibilities which are described or
reasonably implied from the Scope of Work set forth in Exhibit A, attached hereto and incorporated
herein by this reference. No change to the Scope of Work, including any additional compensation,
shall be effective or paid unless authorized by written amendment executed by the Town.
II. TERM AND TERM[NATION
A. Contractor shall complete the Scope of Work on or before N /A.
B. This Contract shall terminate when all the work described in the Scope of Work is
completed to the Town's satisfaction (final acceptance), or upon the Town's providing Contractor
with seven (7) days advance written notice, whichever occurs first; provided that the
indemnification and warranty provisions of this Contract shall survive termination.
III. COMPENSATION
Upon final acceptance by the Town of the work set forth in the Scope of Work, the Town
shall pay Contractor an amount not to exceed _ s« EAM a dollars (S, sw E,a,:ae a )0) (the
"Contract Price"), subject to the requirements of C.RS. § 38 -26 -107. If Contractor completes the
Scope of Work for a lesser amount than the Contract Price, Contractor shall be paid the lesser
amount.
Contractor is an independent contractor. Notwithstanding any other provision of this
Contract, all pommel assigned by Contractor to perform work under the terms of this Contract
shall be, and remain at all times, employees or agents of Contractor for all purposes. Contractor
shall make no representation that it is a Town employee for any purposes.
V. RESPONSIEBILff
Contractor hereby warrants that it is qualified to assume the responsibilities and render the
services described herein and has all requisite corporate authority and licenses in good standing.
The services performed by Contractor shall be in accordance with generally accepted professional
practices and the level of competency presently maintained by others in the same or similar type of
work, and in compliance with applicable laws, ordinances, rules and regulations. The Town's
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review, approval or acceptance of, or payment for any work shall not be construed as a waiver of
any rights under this Contract or any cause of action arising out of the performance of this Contract.
VI. OWNERSHIP
Any materials, items, and work specified in the Scope of Work, and any and all related
documentation and materials provided or developed by Contractor shall be exclusively owned by
the Town. Contractor expressly aclmowledges and agrees that all work performed under the Scope
of Work constitutes a "work made for hire." To the extent, if at all, that it does not constitute a
"work made for hire," Contractor hereby transfers, sells, and assigns to the Town all of its right,
title, and interest in such work. The Town may, with respect to all or any portion of such work, use,
publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change
such work without providing notice to or receiving consent from Contractor.
VII. INEMOCE
A. Contractor shall procure and maintain, at its own cost, a policy or policies of
insurance sufficient to insure against all liability, claims, demands, and other obligations assumed
by Contractor under this Contract, including the following, at a minimum:
1. Worker's compensation insurance as required by law; and
2. Commercial general liability insurance with minimum combined single limits
of six hundred thousand ($600,000) each occurrence and one million dollars ($1,000,000)
general aggregate naming the Town and the Town's officers, employees, and consultants as
additional insureds. The policy shall be with a carver and in a form acceptable to the Town
at the Town's sole discretion.
B. Any insurance carried by the Town, its officers, or its employees or contractors is
excess and not contributory insurance to that provided by Contractor. Contractor shall be solely
responsible for any deductible losses under any policy.
C. Contractor shall provide to the Town a certiScate of insurance as evidence that
required policies are in full force and effect.
D. Failure on the part of Contractor to procure or maintain the insurance required herein
shall constitute a material breach of this Contract upon which the Town may immediately terminate
this Contract, or at its discretion, the Town may procure or renew any such policy or any extended
reporting period thereto and may lay any and all premiums in connection therewith, and all monies
so paid by the Town shall be.repaid by Contractor to the Town upon demand, or the Town may
offset the cost of the premiums against any monies due to Contractor from the Town.
VIII. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the Town and its officers, insurers,
volunteers, representatives, ageats, employees, heirs and assigns from and against all claims, liability,
damages, losses, expenses and demands, including attorney fees, 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, to the extent that such injury, loss or damage is attributable
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to the act, omission, error, professional error, mistake, negligence or other fault of Contractor, any
subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor or of any
subcontractor of Contractor, or which anise out of any worker's compensation claim of any employee of
Contractor or of any employee of any subcontractor of Contractor. Contractor, to the fullest extent
permitted by law, shall defend, investigate, handle, respond and provide defense for and defend against
any such liability, claims, damages, losses, expenses or demands at the sole expense of Contractor, or
at the option of the Town, Contractor agrees to pay the Town or reimburse the Town for defense costs
incurred by the Town in connection with any such liability, claims, damages, losses, expmses or
demands. Contractor, to the fullest extent permitted by law, shall defend and bear all other costs and
expenses related thereto, including court costs and attorney fees, whether or not such liability, claims or
demands alleged are groundless, false or fraudulent. This indemnification provision is intended to
comply with C.R.S. § 13- 21- 11150, as amended, and shall be read as broadly as permitted to satisfy
that intent.
OL TEMMATION
This Contract shall terminate when all the work described in the Scope of Work is
completed to the Town's satisfaction, or upon the Town's providing Contractor with seven (7) days
advance written notice, whichever occurs first. If the Contract is terminated by the Town's issuance
of written notice, the Town shall pay Contractor for all work authorized and completed prior to the
date of termination.
X. E; LEGAL ALIENS
A. Certification. By entering into this Contract, Contractor hereby certifies that, at the
time of this certification, it does not knowingly employ or contract with an illegal alien who will
perform work under this Contract and that Contractor will participate in either the E -Verify
Program administered by the United States Department of Homeland Security and Social Security
Administration or the Department Program administered by the Colorado Department of Labor and
Employment to confirm the employment eligibility of all employees who are newly hired to
perform work under this Contract..
B. Prohibited Acts. Contractor shall not:
1. Knowingly employ or contract with an illegal alien to perform work under
this Contract; or
2. Enter into a contract with a subcontractor that fails to certify to Contractor
that the subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this Contract.
C. Verification.
1. If Contractor has employees, Contractor has confirmed the employment
eligibility of all employees who are newly hired to perform work under this Contract
through participation in either the E -Verify Program or the Department Program.
2. Contractor shall not use the E -Verify Program or Department Program
procedures to undertake pre - employment screening of job applicants while this Contract is
being performed.
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3. If Contractor obtains actual knowledge that a subcontractor performing work
under this Contract knowingly employs or contracts with an illegal alien who is performing
work under this Contract, Contractor shall:
A. Notify the subcontractor and the Town within three (3) days that
Contractor has actual knowledge that the subcontractor is employing or contracting
with an illegal alien who is performing work under this Contract; and
b. Terminate the subcontract with the subcontractor if within three (3)
days of receiving the notice required pursuant to subsection 1 hereon the
subcontractor does not stop employing or contracting with the illegal alien who is
performing work under this Contract; except that Contractor shall not terminate the
subcontract if during such three (3) days the subcontractor provides information to
establish that the subcontractor has not knowingly employed or contracted with an
illegal alien who is performing work under this Contract.
D. jay to ComqjLy with bmckgations. Contractor shall comply with any reasonable
request by the Colorado Department of Labor and Employment made in the course of an
investigation conducted pursuant to C.R.S. § 9- 17.5- 102(5)(a) to ensure that Contractor is complying
with this Contract.
E. AffdA3jU. If Contractor does not have employees, Contractor shall sign the "No
Employee Affidavit" attached hereto. If Contractor wishes to verify the lawful presence of newly
hired employees who perform work under this Contract via the Department Program, Contractor
shall sign the "Department Program Affidavit" attached hereto.
XL WARRANTY
Contractor shall warrant and guarantee all materials furnished and work performed by
Contractor under this Contract for a period of two ('2) years from the date of final acceptance by the
Town. Under this warranty, Contractor agrees to repair or replace, at its own expense and under the
direction of the Town, any portion of the work or materials that fails or is defective, unsound,
unsatisfactory because of materials or workmanship, or that is not in conformity with the provisions
of the Contract. The expiration of the warranty period shall in no way limit the Town's legal or
equitable remedies, or the period in which such remedies may be asserted, for work negligently or
defectively performed.
M BONDS
Within ten (10) days of the date of this Contract, Contractor shall fb nish a Payment and
Performance Bond in the full amount of the Contract Price, as security for the faithful performance
and payment of all Contractor's obligations under this Contract, including the warranty. The bond
shall remain in effect at least until two (2) years after the date of final acceptance.
XHL LIOUIDATED DAMAGES
A. Because time is of the essence and delayed performance constiturtes a compensable
inconvenience to the Town and its residents, the liquidated damages established in this Section shall be
enfarad. Such damages are not a penalty. For each day Final Completion is delayed after the Final
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Completion date stated in the Construction Contract, as modified through approved change orders,
Contractor shall be assessed the following amounts:
B. Allowing Contractor to continue and finish the Work or any part thereof after the Final
Completion date shall not operate as a waiver on the part of the Town of any of its rights under the
Contract Documents. Any liquidated damages assessed shall not relieve Contractor from liability for
any damages or costs of other contractors caused by a failure of Contractor to complete the Work in the
Contract Time. Liquidated damages may be deducted from any payment due Contractor or the
retainage. If the liquidated damages exceed the amount owed to Contractor, Contractor shall reimburse
the Town.
MV. MISCELLANEOUS
A. Govmigu Law and Venue. This Contract shall be governed by the laws of the State
of Colorado, and any legal action concerning the provisions hereof shall be brought in Boulder
County, Colorado.
B. Integer. This Contract and any attached exhibits constitute the entire agreement
between Contractor and the Town, superseding all prior oral or written communications.
C. Third Parties. There are no intended third -party beneficiaries to this Contract.
D. Notice. Any notice under this Contract shall be in writing, and shall be deemed
sufficient when directly presented or sent pre -paid, first class United States Mail to the address
included on Page 1 of this Contract.
E. SMMb ili ty. If any provision of this Contract is found by a court of competent
jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall
remain in full force and effect.
F. Modification. This Contract may only be modified upon written agreement of the
Parties.
G. AssiQnmcnt. Neither this Contract nor any of the rights or obligations of the Parties
hereto, shall be assigned by either party without the written consent of the other.
H. Governmental Immunity. The Town, its officers, and its employees, are relying on,
and do not waive or intend to waive by any provision of this Contract, the monetary limitations
(presently one hundred fifty thousand dollars ($150, 000) per person and six hundred thousand
dollars ($600,000) per occurrence) or any other rights, immuniti es, and protections provided by the
Colorado Governmental Immunity Act, C.RS. § 24 -10 -101, st seq., as amended, or otherwise
available to the Town and its officers or employees.
I. Rights and Remedies. Delays in enforcement or the waiver of any one or more
defaults or breaches of this Contract by the Town shall not constitute a waiver of any of the other
terms or obligation of this Contract. The rights and remedies of the Town under this Contract are in
addition to any other rights and remedies provided by law. The expiration of this Contract shall in
no way limit the Town's legal or equitable remedies, or the period in which such remedies may be
asserted, for work negligently or defectively performcd.
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J. Subjm to Annual Appr22 iation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the Town not performed during the current fiscal year is
subject to annual appropriation, and thus any obligations of the Town hereunder shall extend only to
monies currently appropriated and shall not constitute a mandatory charge, requirement or liability
beyond the current fiscal year.
IN WITNESS WHEREOF, the Parties hereto have executed this Contract on the date first
sat forth above.
TOWN OF VAIL, COLORADO
Stan Zemler, Town Manager
ATTEST:
Lorelei Donaldson, Town Cleric
APPROVED AS TO FORM:
Matt Mire, Town Attorney
CONTRACTORyet,.rep
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By
STATE OF COLORADO )
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COUNTY OF
The ore o' iastrun t was s scri ,sworn to and acJmowl ed afore me �� /tom
day of g 201 by 1`'� Q as CO /1MdAkIrd of
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My commission expires: 9 - %
(SEAL)
AMANDA J BABE
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20154087M
COMMMM EXPIRES SEP. 11, 2017
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Notary Public
41104 i
EXffiBIT A
SCOPE OF WORK
Construction Documents Plans and Specifications entitled
Upper Middle Creek Bank Stabilization
Dated October 24th, 2011
And As Amended
And in Accordance with the following Bid Schedule.
Yeater Companies has identified eight (8) rocks that will require drilling and bolting to a host feature.
We have also identified several smaller rocks that will require scaling and some larger rocks that will
require downsizing with the use of a Hydraulic Rock Sputter, then scaled off of the slope.
We have discussed ways to safely protect the workers below and the buildings during the scaling
operations. Yenter Companies will be installing a temporary Rockfall Barrier system to contain the
debris from our scaling operations. (See: Conditions and Clarifications # 4 and #5.)
Item
#
Item Description
Approx.
Quantity
Unit
Unit
Price
Price
1
Mobilization
1
LS
$5,500
2
Scaling/ Includes Temporary Rock Fall
1
LS
$58,140.00
Barrier
3
Bolting
1
LS
$27,383
4
Traffic Control ( includes signage rental
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Day
$453.00
511,778.00
and Mobilization in and out)
5
Hauling of Scaled Materials (estimated
6
Ea
$287.50
$1725.00
6
Total Estimated Cost*
$104,526
*Final Contract cost will be determined by performance of Item Nos. 1 -3 on a Lump Sum Basis, and
the actual amount of necessary hauling and days of traffic control (Items No. 5 and 5), which are
quoted on a unit price basis.
Conditions/Claritfcatioo s:
1. Quantities above arc based on information provided by examining the flyover photos and
walking of the site and information provided to Yenter Companies.
2. In the event a hazardous unforeseeable problem is identified. The Town of Vail will be notified
and will have final say as to the solution.
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3. Pricing assumes one mobilization for crew and associated equipment.
4. Yenter Companies will make every attempt to contain the rocks generated from the
scaling operations however with the uncontrolled nature of the fiffiing rocks it Is not
guaranteed that the containment system will be 100% effective. Every effort has been
made to employee a barrier to atop the debris but there am still rinks.
5. The temporary barriers is not designed for translational energies greater then the
designed capacity, (100kg) rocks that bounce over the fence, rotational e5seft of rolling
rocks and multiple simultaneous events.
6. Pricing includes labor, equipment, and materials to complete the work as described above.
7. Pricing above assumes that parking for construction vehicles (fuel and supplies) will be
available on site or in close proximity and will be at no additional cost to Yenter Companies,
Inc.
S. Price and scope of work do not include winter protection, heating or snow removal to complete
work.
9. The work is assumed to progress as one continuous operation provided by Owner and/or
General Contractor. Should Owner and/or General Contractor direct Yenta to stand down or
leave job site, or should Yenter Companies work be interrupted due to no fault of Yenter
Companies, Inc., stand -by or down time will be billed at an hourly rate of $240 per hour during
normal scheduled working hours (7 a.m. — 5 p.m., Monday thru Friday).
10. Reasonable access to work area will be provided to Yenter Companies at all times for
equipmenrt and materials delivery.
11. Traffic control/coordination will include a full road closure. A hard closure on one end and a
soft closure at the other. A flagger will be on site during work hours. The daily rate will be
charged until completion.
12. All surveying and layout if required is the responsibility of others and at no additional cost to
Yenter Companies, Inc.
13. Yenter Companies, Inc. is not aware of any utilities that exist within the work area Relocation
of utilities, if required, by others.
14. A clean supply of water for construction is to be provided by others and available on -site or in
close proximity to the work, at no additional cost to Yenter Companies, Inc.
15. The hauling off of materials generated from the scaling is based on conditions observed by
onsite visits and fly over. Quantities could change based on downsizing an unforeseen scaling.
16. Above pricing does not include the cost of providing a performance and payment bond. If
required, Yenter Companies, Inc, will obtain a performance bond and a payment bond, and
invoice the Town of Vail, to be paid by the Town of Vail as an additional charge to the pricing
for Items 1-6 above.
I/loq*