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HomeMy WebLinkAbout2019-04 Agreement between TOV and Walking Mountains for the Operation of the Vail Nature Center RESOLUTION NO. 4 Series of 2019 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE TOWN OF VAIL AND WALKING MOUNTAINS SCIENCE CENTER FOR THE OPERATION OF THE VAIL NATURE CENTER WHEREAS, the Town desires to enter into a Professional Services Agreement (the "Agreement") with Walking Mountains Science Center for the operation of the Vail Nature Center; and WHEREAS, the Town Council's approval of this Resolution is required to approve the Agreement. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Town Council hereby approves the Agreement and authorizes the Town Manager to execute 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. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 8th day of January 2018. 41011.ri ave Chapin, Town Mayor ATTEST: MIWALIIMiiiib : ''/f14itir '''S'N ( Arm47771, / Or -4J . 11V+. VI Town Clerk 't,411 itt AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered into this 8th day of January, 2019, by and between the TOWN OF VAIL, a Colorado municipal corporation, 75 South Frontage Road, Vail, Colorado 81657, hereinafter referred to as the "Town," and Walking Mountains Science Center, a non-profit organization with a principal place of business at Walking Mountains Lane, Avon, CO, 81620 ("Contractor") (each individually a "Party" and collectively the "Parties"). WHEREAS, the Town requires professional services; and WHEREAS, Contractor has held itself out to the Town as having the requisite expertise and experience to perform the required professional services. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. SCOPE OF SERVICES A. 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 Services set forth in Exhibit A, attached hereto and incorporated herein by this reference. B. A change in the Scope of Services shall not be effective unless authorized as an amendment to this Agreement. If Contractor proceeds without such written authorization, Contractor shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. II. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date, and shall continue until Contractor completes the Scope of Services to the satisfaction of the Town, or until terminated as provided herein. B. Either Party may terminate this Agreement upon thirty (30) days advance written notice. The Town shall pay Contractor for all work previously authorized and completed prior to the date of termination. If, however, Contractor has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. III. COMPENSATION A. In consideration for the completion of the Scope of Services by Contractor, the Town shall pay Contractor an amount not to exceed $75,000. This maximum amount shall include all fees, costs and expenses incurred by Contractor, and no additional amounts shall be paid by the Town for such fees, costs and expenses. Contractor shall bill the Town on a monthly 1 1/3/19 basis from the month of February through November, 2019, and be paid by the Town as the Scope of Services is completed to the satisfaction of the Town. B. Notwithstanding the maximum amount specified in this Section, Contractor shall be paid only for work performed. IV. PROFESSIONAL RESPONSIBILITY A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. B. The work performed by Contractor shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations. C. The Town's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. D. Because the Town has hired Contractor for its professional expertise, Contractor agrees not to employ subcontractors to perform any work under the Scope of Services, except for those explicitly described in Exhibit A. V. INDEPENDENT CONTRACTOR Contractor is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Contractor to perform work under the terms of this Agreement 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. VI. INSURANCE A. Contractor agrees to 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 pursuant to this Agreement. At a minimum, Contractor shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance to cover obligations imposed by applicable law for any employee engaged in the performance of work under this Agreement, and Employer's Liability insurance with minimum limits of $100,000 bodily injury by accident for each employee, $100,000 bodily injury by disease for each employee, and policy limit of$500,000 bodily injury by disease. 2 1/3/19 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. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least thirty (30) days prior written notice has been given to the Town. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any deductible losses under any policy. VII. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, 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 Agreement if such injury, loss, or damage is caused in whole or in part by, 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 which arise out of a worker's compensation claim of any employee of Contractor or of any employee of any subcontractor of Contractor. VIII. ILLEGAL ALIENS A. Certification. By entering into this Agreement, 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 Agreement 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 Agreement. B. Prohibited Acts. Contractor shall not: 1. Knowingly employ or contract with an illegal alien to perform work under this Agreement; or 3 13/19 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 Agreement. 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 Agreement 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 Agreement is being performed. 3. If Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien who is performing work under this Agreement, Contractor shall: a. Notify the subcontractor and the District 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 Agreement; and b. Terminate the subcontract with the subcontractor if within three (3) days of receiving the notice required pursuant to subsection 1 hereof, the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Agreement; 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 Agreement. D. Duty to Comply with Investigations. 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. § 8-17.5-102(5)(a)to ensure that Contractor is complying with the terms of this Agreement. E. Affidavits. 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 the Agreement via the Department Program, Contractor shall sign the "Department Program Affidavit" attached hereto. IX. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado. 4 1/3/19 B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third-party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre-paid, first class United States Mail to the party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement 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. G. Modification. This Agreement may only be modified upon written agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties hereto, shall be assigned by either Party without the written consent of the other. I. 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 Agreement, 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, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers or employees. J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement 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. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year are 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, debt or liability beyond the current fiscal year. 5 1/3/19 IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above. TOWN OF VAIL a Colorado Municipal Corporation Greg Clifton Town Manager CONTRACTOR By: Markian Feduschak, President Walking Mountains Science Center STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this day of , 2019, by as of My commission expires: (SEAL) Notary Public 6 1/3/19 EXHIBIT A SCOPE OF SERVICES See attached Proposal from Walking Mountains Science Center to the Town of Vail 7 1/3/19 DEPARTMENT PROGRAM AFFIDAVIT [To be completed only if Contractor participates in the Department of Labor Lawful Presence Verification Program] I, , as a public contractor under contract with the Town of Vail (the " Town "), hereby affirm that: 1. I have examined or will examine the legal work status of all employees who are newly hired for employment to perform work under this public contract for services ("Agreement") with the Town within twenty(20) days after such hiring date; 2. I have retained or will retain file copies of all documents required by 8 U.S.C. § 1324a, which verify the employment eligibility and identity of newly hired employees who perform work under this Agreement; and 3. I have not and will not alter or falsify the identification documents for my newly hired employees who perform work under this Agreement. Signature Date STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to and acknowledged before me this day of , 2019, by as of My commission expires: (SEAL) Notary Public 8 1/3/19 EXHIBIT A SCOPE OF SERVICES Vail Nature Center Summer 2019 The Contractor will operate the following programs at the Vail Nature Center: Wildflower Walk— (1 hour, 3 days per week) A leisurely one-hour walk through the woods and meadows in which guests learn about the flowers that carpet the mountains and the conditions they need to thrive. Morning Bird Walk— (1 hour, 2 days per week) A morning walk through the meadows and woods along the Gore Creek where guests learn about a great variety of birds, what they need to survive, and to attract birds to their own backyards. Beaver Pond Tour— (1.75 hours, 2 evenings per week) The guest experience begins at the Nature Center with a brief presentation about beavers, followed by a drive to a beaver pond and active lodge. Stories in the Sky: Stargazing— (1.5 hours, 1 evening per week) Participants experience the mountains of Vail under the stars like never before. From endless constellations and cascading shooting stars to full moons almost as bright as the sun. S'Mores and More: Family Campfire Program — (1.5 hours, 2 evenings per week) A warm campfire, exciting stories of woodland adventures and the sweet smell of burning marshmallows fill this family program at the Vail Nature Center. Creekside Nature Tours — (1 hour, 2 times per Farmer's Market) a casual stroll along Vail's streamside paths. Tours depart from the Walking Mountains Science Center booth at the Vail Farmers' Market on Sundays throughout the summer. Adult Full-Day Nature Hikes & Hiking Club - Summer naturalist guides from the Nature Center lead participants on all-day hikes throughout the Holy Cross and Eagles Nest Wilderness areas. Hikes are at a pace that allows participants to enjoy the flora and fauna along the trail. Participants should be in healthy condition and accustomed to the altitude. Hike participants should bring extra clothing, rain gear, lunch, trail snacks, water and a camera. Transportation is provided from the Nature Center. Dogs are not allowed. Adult Half-Day Wildflower Hikes - In the Rockies, we are fortunate to be surrounded by an abundance of beauty and biodiversity. Participants learn the basic skills needed to identify local plants, as well as fascinating information about their historic and modern uses. Naturalists lead a leisurely hike on various trails in the Vail area. While easier and slower-paced than full-day hikes, participants must be able to hike 3-6 miles at high altitude. Hiking participants should bring rain gear, trail snacks, water and a camera. Participants should wear sturdy footwear that is comfortable. Transportation is provided from the Nature Center. Dogs are not allowed. Adult Art in Nature Workshops (Photography, Drawing, and/or Watercolors) — Participants spend an enjoyable morning exploring the beauty of the Vail Valley, learning easy techniques and tricks that will immediately improve photography skills. Participants learn the foundation to better pictures through composition and using a camera and eye to their fullest potential. Participants discover how to visualize a scene and how it translates into an image as well as what to look for from the grandest panorama to the tiniest detail. Youth Learn to Think Like a Trout (4 hours, 1 day per week; tentative for 2019) - The fly-fishing program takes place on select days throughout the summer and is comprised of education about ecosystem and entomology (study of insects), as well as basic tools and knowledge of fly-fishing. Fishing equipment is provided. Youth Wild Artists - Youth participants enjoy classes that engage artists of all skill levels in the natural world while offering nature enthusiasts the opportunity to express themselves artistically. The Nature Center partners with the Town of Vail's Art in Public Places program to offer these classes. Art in Nature youth programs take place outside the Nature Center. Materials included. Volunteer Days—Volunteer groups and students assist with trail maintenance and invasive weeds. Drop-in Activity Programming— (2 hours, 5 days per week) The Contractor is responsible for all services above and staffing of the Nature Center, excluding the cost of electrical service, maintenance and cleaning of the interior and exterior of the VNC, including exhibits within the VNC or on the grounds, facilities, signage, and seating, telephone and internet service. 1. Contractor's Obligations. Contractor shall: (a) Provide all staffing and cover all related costs of wages, contract labor, benefits, payroll taxes, workers comp, uniforms, cell phones, and other costs required to run the Programs. (b) Provide one van for use in transporting staff and Program participants. (c) Supply all operating goods such as supplies, food, inventory or retail items for sale, computer and office supplies, bank and credit card fees, and all other costs required for all Program operations. (d) Pay all of the costs to maintain the required licenses from the US Forest Service and any other permits required for programs offered at the Vail Nature Center; all such licenses and permits shall be maintained in the name of the Contractor, but shall revert to the Town of Vail should the Contractor no longer operate Programs at the Vail Nature Center. (e) Provide an attendance report for all summer programs to the Town of Vail at the end of the season.