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HomeMy WebLinkAboutbocc.con.096.2005 CHECK LIST CONTRACT # FOR CONTRACTS SUBMITTED TO CLERK AND RECORDER FOR SCANNING/ARCHIVING Originating Department/Division: /Of t/~/nO/'~.'T' Contact Person: /~/~r'~J ~' //.~t./~"~- 1,$ Phone #: Project Name ~/:~/'/ - /:~l Contract #: BOCC AGENDA ITEM ~ STAFF AUTHORIZED SIGNATURE (BOCC signature required) (per Revised Procurement Code7/2005) Check Contract Type: Doll/fi' Amount: $ ~ Line Item g')/~. ~ ~.. Maintenance ~ License/Use Lease Construction __Grant Agreements (Requires BOCC Action) __ Change Order/Contract Amendment Other Purchase Employment Intergovernmental Agreement (Requires BOCC Action) Non Profit ___Quasi-Public Signatures Required: Under 25K - Department Head 25-50K - Department Head (if appropriate), Section Leader CONTRACT # STAFF AUTHORIZED SIGNATURE Over 50 K - Department Head (if appropriate), Section Leader, County Manager Contractor/Business (Complete Name): Contract Execution Date: /O l¥ Ofit Automatic Renewal (Y/N): ~// Contract End Date: /O/tl/O Term ___~_ year(s) All Contracts should be proofed for the following: · No Pages Missing · If a Page is Left Intentionally Blank - Note on Page · Page numbered consecutively · All Signatures Affixed · All Dates Filled In · All Other Blanks Filled In · All Exhibits Attached · All Legal Descriptions Attached (if appropriate) · Notice of Award/Proceed Attached (if appropriate) Sent to Clerk and Recorder for Scanning/Archiving ~ Date: ~/O~'" Authorized Staff Person Signature of authorized staff person indicates that document has been proofed and ready for scanning. Note: Clerk's Office will keep original documents in compliance with Colorado State Archives retainage schedule. pcjmj\wwlglscannning\county contracts\narrativelchecklistsheet STAFF AUTHORIZED SIGNATURE WIRELESS NETWORK LICENSE AGREEMENT THIS WIRELESS NETWORK LICENSE AGREEMENT, hereinafter referred to as the ("Agreement"), is made as of the 14th day of October, .2004, between The Aspen / Pitkin County Airport ("Licensor"), having offices at: 0233 East Airport Road E Concourse, Suite A Aspen Colorado 81611 and Opti-Fi Networks, Ltd., having offices at 2251 Riva Road, Annapolis, Maryland 21401 ("OPTI-FI"). For the purposes of this Agreement: (i) "PROPERTY" is defined to mean those areas designated as airport-managed property and designated by LICENSOR as being available for OPTI-FI's use hereunder including but not limited to the terminal building, portions of the apron area on airside, and the parking lot facilities under the management of the LICENSOR; (ii) "WLAN" is defined to mean wireless local area network; (iii) "Wi-Fi" is defined to mean wireless fidelity; and (iv) "WISP" is defined to mean wireless intemet service provider. WHEREAS, OPTI-FI agrees to install Wi-Fi equipment, other electronic devices and telephone company related lines necessary to enable the delivery of high-speed wireless and or wired Intemet services to public and private customers for the use in and around the Property, ("EQUIPMENT"). The LICENSOR shall provide high speed internet connectivity. The electronic facilities consist of various transmitting antennas and associated electronic equipment installed at strategic points in and around the Property at locations approved by the Licensor. Positioning of all EQUIPMENT must first take into consideration airport operations and safety, secondly optimum performance, and finally to be as non-conspicuous as possible. In consideration of the mutual covenants herein expressed, the receipt and sufficiency of which are acknowledged by the parties hereto, LICENSOR and OPTI-FI hereby covenant and agree as follows: 'Method of Operation. LICENSOR warrants that it is the authorized operator and manager of the Aspen Pitkin County Airport (the "Airport"), and hereby grants to OPTI- FI the right to operate and maintain EQUIPMENT upon the PROPERTY with the right to reconstruct, improve, repair, and to remove or partially disconnect such facilities as deemed necessary by OPTI-FI and with the approval of the LICENSOR in fulfillment of OPTI-FI's obligations under this Agreement. These rights granted allow any persons, firm, or corporation under the employ of or contract with OPTI-FI and approved in advance by the LICENSOR to lay cable, and install conduits, or other EQUIPMENT, and to solicit customers as outlined in the attached Marketing Addendum. Notwithstanding Section 1 above, and notwithstanding any other provisions set out in this Agreement, OPTI-FI hereby acknowledges and agrees that no EQUIPMENT shall be installed, reconstructed, improved or repaired in or around the Property or elsewhere at the Airport without LICENSOR's prior written consent. OPTI-FI shall adhere to all Transportation Security Administration (TSA) and airport security regulations. 1.1 Term & License to Perform. LICENSOR hereby grants OPTI-FI the exclusive license (the "License") and easements to erect, install, use and maintain the EQUIPMENT on the PROPERTY and to provide such services ("Services") as may be required for the performance by OPTI-FI of its obligations as heroin set forth for a period of Three (3) years commencing on the date the system is accepted by the LICENSOR as operational. Nothing contained herein shall be construed as (i) granting to OPTI-FI any property or ownership rights in the real or personal property of LICENSOR, (ii) granting title to LICENSOR or any right, or interest in or to the EQUIPMENT during the term of this agreement including any enacted renewals, or (iii) creating a partnership, or joint ventures relationship between LICENSOR and OPTI-FI. OPTI-FI shall not, at any time, record or attempt to record this Agreement, any notice or memorandum thereof, or any other instrument against the real property of LICENSOR. The License granted hereby shall also permit OPTI-FI to utilize the power supplied to the PROPERTY to provide power to EQUIPMENT installed by OPTI-FI. This contract shall automatically renew for a two (2) year period unless notice is provided by either party 30 days prior to the expiration of the initial term. At the end of this Agreement, all EQUIPMENT located at the Airport will revert to LICENSOR License of Exclusivity. The LICENSOR agrees that the license granted herein is exclusive to OPTI-FI and that the LICENSOR shall not grant a license to any other service provider to provide public high-speed wireless Internet access, or private Wi-Fi services in the PROPERTY at any time during the term of this Agreement. As per FCC. regulations, the Licensor will not be able to restrict airport vendors or tenants from installing their own private WiFi systems. Use of Facilities. OPTI-FI shall install and use the EQUIPMENT in full compliance with all laws for a wireless and/or wired network to provide high-speed Wi-Fi access or other services to customers for the use in and around the PROPERTY. OPTI-FI may, with the approval of the LICENSOR, also facilitate wired public intemet access and/or at the AIRPORT. If implemented, all terms of this agreement would apply to such service. Save and except as otherwise contemplated by this Agreement (specifically including when necessitated by airport operations and safety), at no time during the term hereof will LICENSOR or any third party have the right to use, alter or move OPTI-FI's EQUIPMENT without the express written consent of OPTI-FI. LICENSOR shall provide escorts for OPTI-FI staff for on-site visits pertaining to this service during the term of the agreement. LICENSOR shall also assist OPTI-FI in rooftop installation at the facilities if such items are required. Facility Fee. OPTI-FI shall pay LICENSOR a monthly license fee of Three Hundred dollars ($300.00). In addition, OPTI-FI shall pay LICENSOR 15% of all revenues billed and collected resulting from the provision of Opti-Fi Services at the Airport. OPTI-FI will also provide to LICENSOR 5 private access accounts, for mid-level private access service, at no charge. For additional accounts requested by the LICENSOR exceeding the aforementioned accounts, OPTI-FI will provide such additional accounts at a rate of 50% of current list price. The LICENSOR will directly control all advertising on the customer sign in portol known as the Opti-Fi/ASE Login Page, and therefore achieve 100% of all revenue associated with that component. 5.1 All fees referred to in Section 5 above are to be remitted quarterly. OPTI-FI will finnish, within thirty (30) days after each quarter during the term, LICENSOR with a written invoice setting out in reasonable detail the amount of all revenues billed and collected for such quarter. 6. Installation/Maintenance/Repair. OPTI-FI shall perform all work and Services in a safe manner consistent with the highest standards (including construction standards) and in full compliance with all statutory requirements and all requirements imposed by federal, state, local and/or other proper authorities. Any damage caused to property shall be the responsibility of OPTI-FI. OPTI-FI also agrees to perform all work in such a way as to minimize interference with the operation of the Airport and Licensor's activities. The LICENSOR shall escort such personnel at the Airport when applicable. The EQUIPMENT remains the sole risk of OPTI-FI, and LICENSOR shall not be liable for damage thereto from theft, misappropriation or loss, regardless of the cause thereof. Except as otherwise provided for herein, LICENSOR shall not interfere with OPTI-FI's use, operation or maintenance of the EQUIPMENT. OPTI-FI will provide no less than 90% coverage in public areas of the Terminal Building. Coverage shall be defined as the ability of a public user to connect to the system and be presented the login portal subject to compliance with all statutory requirements and all requirements of the proper authorities. Termination. This Agreement shall terminate upon the earliest to occur of: (i) the date which is thirty (30) days following LICENSOR's notice to OPTI-FI that OPTI-FI has defaulted under the terms of the Agreement (unless OPTI-FI has cured such default within said thirty {30} day period); or (ii) the date of a casualty to all or any portion of the PROPERTY, the result of such casualty is to render the continued Services by OPTI- FI under this Agreement impractical; or (iii) the date of condemnation of the PROPERTY making all or any continued Services by OPTI-FI under this Agreement impractical; or (iv) the date upon which OPTI-FI shall make an assignment for the benefit of its creditors or becoming bankrupt or insolvent or shall make application for relief under the provisions of any statute now or hereinafter in force concerning bankrupt or insolvent debtors, or take any other action with a view to its winding-up, dissolution or liquidation. 8. County's Right to Audit. The County may conduct audits of Opti-Fi's books of account and records as follows: Time and Frequency of Audits. The County may conduct audits of Opti-Fi at any of the following times: annually; at the expiration or termination of the term hereof; upon a request by Opti-Fi of assignment of its rights hereunder; and upon the receipt by County of any information that would lead a prudent commercial landlord to draw a reasonable inference that Opti-Fi is not in full compliance with its financial obligations hereunder. Manner of Audits. Such audits shall be conducted upon reasonable notice to Opti-Fi and during Opti-Fi's normal weekday business hours. For purposes of this Agreement, the annual audit period shall be deemed to commence on November 1 of each year of the Agreement and to conclude on October 31 of the ensuing year. Licensor shall hold all information obtained from any such audits in confidence except: as may be necessary to enforce the Licensor's rights under this Agreement; as part of any federal, state or local tax proceedings; and with respect to any legal requirements or Court Order to disclose said information. Scope of Audits. In performing said audits, Licensor shall be entitled to review, and Opti-Fi shall be obligated promptly to provide to the Licensor upon demand therefor, all of the books of account and records that Opti-Fi is obligated to maintain pursuant hereto, plus such other records, documents and files in Opti- Fi's possession, custody or control during the term hereof that the Licensor, (or its auditor), determine, in their sole discretion, are useful, relevant or necessary to determine or verify the correct amount of reportable, includable and excludable revenues and Gross Sales and Gross Revenues attributable to Opti-Fi, and the correct amount of Percentage Override owed by Opti-Fi to the Licensor, for the period involved. One Hundred Eighty (180) days after the date all documents requested by the Licensor have been received by the Licensor, the Licensor shall release Opti-Fi from any liability for underreporting or underpayment hereunder, unless the Licensor shall have given Notice, within that period, of any questions, objections or exceptions to the statement or any claims for inadequate or deficient reporting or payment. Once such notice is given, the parties shall expeditiously and in good faith cooperate to resolve the matters contained therein. Results of Audits. Should Opti-Fi fail to maintain the books of account and records required to be maintained pursuant hereto, or should Opti-Fi fail to deliver and enable Licensor (or its auditor) to review Opti-Fi's books and records, and other documents and files, within seven days after a request therefor as required by this paragraph, said default is agreed by the parties to be a material breach of this License and Opti-Fi shall pay, as liquidated damages for such breach, an additional amount equal to fifty (50%) percent of the verifiable costs, fees, payments and charges due from Opti-Fi hereunder for the period in question; provided, however, that Opti-Fi shall only pay these damages for failure to keep required records if such requirements are reasonable in light of Opti-Fi"s business practices (as such practices may be modified by County requests hereunder) and generally accepted accounting principles and auditing standards. If any audit shows percentage compensation and other fees and charges that should have been paid to the Licensor by Opti-Fi pursuant to this Agreement were understated or underpaid for any period involved (including, expressly, revenues from prohibited or unpermitted transactions, Premises or diverted business), Opti- Fi shall, within thirty (30) days notice by Licensor of any such deficiency, pay to the Licensor the full amount underpaid, plus two pement (2%) interest per month, calculated as provided above, on such underpayment from the time said underpayment should have been paid to the time said underpayment is fully paid. If the audit discloses overpayment of the Pementage Override paid to the Licensor by Lessee, the Licensor shall refund the amount of overpayment to Lessee within thirty (30) days of said audit. Expense of audits. Generally, the Licensor shall bear the expense of annual, end- of-term or investigatory audits; however, if the amount of underpayment disclosed by any audit exceeds exactly two (2.0%) percent of the total Percentage Override or Additional Charges that was owed by Opti-Fi to the Licensor for the period involved, Opti-Fi, in addition to paying the Licensor the underpayment owed and interest accrued thereon shall, within thirty (30) days' Notice by Licensor, reimburse the Licensor for the cost of the audit not to exceed Fifteen Hundred Dollars ($1,500.00). An audit done prior to any assignment, conveyance or transfer by Opti-Fi of this Lease or any rights or obligations hereunder requiring approval of the Licensor as required herein, shall be at the sole expense of the Opti-Fi. 9. Assignment. This Agreement with OPTI-FI may not be transferred or assigned by either party without prior written consent, which may not be unreasonably withheld. 10. Notice. Every notice required or permitted heretmder shall be in writing and shall be deemed to have been duly given when delivered or, five (5) days after mailing if mailed by certified or registered mail, return receipt requested, to the party's address set forth in the introductory paragraph of this Agreement. 11. Indemnification and Waiver. OPTI-FI shall indemnify, exonerate, and hold LICENSOR harmless from and against any and all loss, cost, damage and expense of whatever kind, arising directly or indirectly from OPTI-FI's (1) breach of the Agreement, including, but not limited to, reasonable attorney's fees and court costs. LICENSOR shall indemnify, exonerate and hold OPTI-FI harmless from and against any and all loss, cost, damage and expense of whatever kind, arising directly or indirectly from LICENSOR's breach of this Agreement, including, but not limited to, reasonable attorney's fees and court costs. Notwithstanding the foregoing, such indemnifications shall be limited to actual damages incurred. OPTI-FI hereby agrees to indemnify, waive any claims against, and release LICENSOR with respect to any liabilities, costs, damages and expenses of whatever kind arising directly or indirectly from the operation and/or installation of the EQUIPMENT at the Airport. The provisions of the Section shall survive termination of this Agreement. 12. OPTI-FI, its licensors or contractors make no warranties or representations as to the accuracy, truthfulness, usefulness, effectiveness, reliability, or security of the Service or content and assumes no liability or responsibility therefore. OPTI-FI will fully cooperate with law enforcement authorities and legal proceedings requiring OPTI-FI to disclose the identity of users. NEITHER PARTY NOR ANY OF their LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARIS1NG OUT OF OR RELATED TO THE SERVICE, CONTENT OR THIRD-PARTY MATERIALS THEREIN INCLUDING, WIT}tOUT LIMITATION, RELATING TO COMPUTER VIRUSES OR CUSTOMER USE OR INABILITY TO USE THE SERVICE OR CONTENT; ANY ERRORS, OMISSIONS OR DEFECTS IN THE SERVICE OR CONTENT; LOSSES FROM INTERRUPTION, TERMINATION OR FAILED OPERATION OF THE SERVICE; OR ANY BREACHES OF SECURITY WITH RESPECT TO ANY CUSTOMER INFORMATION. THE CHARGES FOR SERVICES PROVIDED AND THE TERMS OF THIS AGREEMENT REFLECT THE ALLOCATION OF RISK ASSUMED BETWEEN THE PARTIES HERETO. 13. Applicable Law/Choice of Venue. This Agreement shall be governed by the laws of the State of Colorado without regard to any conflicts of law roles or procedures. Venue is agreed to be in Pitkin County District Court. 14. Required Clauses. The Pitkin County Required Clauses, as included in Addendum B, shall be incorporated into this agreement. 15. Entire Agreement. This represents the full understanding of the parties and cannot be modified or amended except by written addendum(s), which shall be attached. OPTI-FI NETWORKS, LLC By:~&~ Printed I~ame: /~;~gllTlO~q{.9 (/ Title: Date: LICENSOR Printed Name: By: _ Printed Name: Title: Date: By: Printed Name: Title: Date: TradePo~documents\Opti-FiNetworksServiceAgreement-De¢ 18.03.CLEAN.doc Addendum A - Marketing For Private Access: OPTI-FI will employ every reasonable effort to market Private Access services to key Airport tenant contacts and provide market information about Private Access wireless services available at the Airport. 0PTI-FI will coordinate with the Airport in all communications with local Airport tenant representatives on WLAN services. For Public Access: OPTI-FI will work with the Airport marketing personnel to identify ways in which Public Access services can best be presented and bring immediate short-term, high-impact exposure for the Airport. OPTI-FI will employ marketing materials and methods that have proven successful in other airport deployments as it markets Public Access services at the Airport. OPTI-FI will also encourage all WISPs using the Airport WLAN as well as vendors and subcontractors to include the Airport in member network. OPTI-FI will contact all WISPs indicated by the LICENSOR within 30 days to provide information on roaming access at the airport. OPTI-FI will make all reasonable efforts to implement a roaming contract with such WISPs. Addendum B - Pitkin County Required Clauses For purposes of these required clauses, "Contractor" means the proposer or other party who may eventually enter into a contract with the County. The Proposer shall be subject to the following provisions: 1. COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CON- TRACTING LAW The contractor acknowledges that this Agreement is entered into subject to the requirements of the "Pitkin County Procurement Code," (Section 8.5 of the Pitkin County Home Rule Charter, Ordinance # 00-18, approved April 26, 2000). As such, the Contractor agrees to comply with all requirements of said Procurement Code, and such requirements are incorporated herein by this reference. The Contractor shall immediately notify the County Manager in writing of any violation of said Code or statutes by the County's employees or agents, which violation(s) is known or should have been known by him, and failure to so notify the County of any violation(s) within five (5) days of knowledge of such violations shall be considered a breach of this Agreement. Further, such failure to notify the County of violation of the Procurement Code or statutes within five (5) days of knowledge shall be deemed as a waiver of any action or defense that the Contractor may have against the County by reason of such violation of the Procurement Code or statutes. WARRANTIES AGAINST CONTINGENT FEES~ GRATUITIES~ KICKBACKS AND CONFLICT OF INTEREST Covenant Against Contingent Fees. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. Gratuities Prohibited. The Contractor agrees not to give any employee or former employee of Pitkin County a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Contract or Subcontract, or to any solicitation or proposal therefor. Gratuity means a payment, loan, subscription, advance deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received. Kickbacks Prohibited. It shall be a breach of Contract for any payment, gratuity, or offer of emploYment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith, as an inducement for the award ora subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. Conflict of Interest Prohibited. No official, officer, employee or representative of the County during the term of this Contract or one (1) year thereafter shall have any interest, direct or indirect, in this Contract or the proceeds thereof. (Additional restrictions on present and former employees of County are found in Article 7 of the Procurement Code). Sub-Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks and conflict of interest prescribed in this Contract shall be made a condition of and conspicuously set forth in every sub-contract and solicitation therefor. Conspicuously means written in such special or distinctive format, print, or manner that a reasonable person against whom it is to operate ought to have noticed it. Remedies. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the County shall have the right to: (1) Terminate this Contract without liability by the County; (2) Debar or suspend the offending parties from being a contractor or sub-contractor under County contracts; (3) Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Contractor; and (4) Recover such value from the other offending parties. EQUAL EMPLOYMENT OPPORTUNITY AND DISADVANTAGED/MINORITY/WOMEN BUSINESS ENTERPRISES (DBE/MBE/WBE) Pursuant to local, state and/or federal anti-discrimination and affirmative action programs, contractor shall meet all applicable requirements established by law with respect to employment and subcontracting in connection with Disadvantages/Minority/Women individuals and enterprises (DME/MBE/WBE). In connection with the execution and administration of this Contract, and any subcontracts, the Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, handicap or status as a veteran. In connection with the performance of this Contract, the Contractor will cooperate with the County in meeting the County's commitments and goals with regard to the maximum utilization of disadvantaged, minority and women business enterprises and will use its best efforts to ensure that such business enterprises shall have the maximum practicable opportunity to compete for employment and/or subcontract work, if any, under this Contract. The Contractor will furnish all necessary information and reports and will permit access to its books, records, and accounts by Pitkin County for purpose of investigation to ascertain compliance with the nondiscrimination/affirmative action provisions of any resultant contract. Employment Data and Affirmative Action Plan. If requested, the Contractor agrees to submit on an Employment Data Form to be provided by the County, the data showing the utilization of disadvantaged persons, minorities and women by job category within its organization. Where the Contractor has fifty (50) or more employees or it is participating in contracts with the County which exceed Fifty-Thousand ($50,000.00) Dollars, an Affirmative Action Plan must be // submitted to the County when requested by the County Attorney's Office within ten (10) days after selection. Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination/affirmative action provisions of any resultant contract, Pitkin County shall impose such contract sanctions as it may determine to be appropriate, including, but not limited to: (1) (2) Withholding of payments under the Contract until the Contractor complies, and/or Cancellation, termination, or suspension of the Contract, in whole or in part. TERMINATION FOR DEFAULT OR FOR CONVENIENCE OF COUNTY The performance of work under the Contract may be terminated by the County: (1) Whenever the Contractor shall default in performance of this Contract in accordance with its terms, and fails to cure or show cause why such failure to perform should be excused within ten (10) days (or longer as the County may allow or shorter, but not less than three (3) days, for failure to provide proof of insurance or maintenance of any dangerous condition) after hand-delivery or mailing to the Contractor of a notice specifying the default. If mailed, said notice shall be sent by certified mail, return receipt requested, to the address specified herein for the Contractor. The Contractor shall not be in default by reasons of any failure in performance of this Contract in accordance with its terms if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor. Such causes may include, but are not restricted to, acts of God, natural disasters, strikes, or freight embargoes, but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. Upon request &the Contractor, the County shall ascertain the facts and failure, and, if the County shall determine that any failure to perform consti- tuted a valid commercial excuse, the performance shall be revised accordingly and notice of default withdrawn; or (2) Whenever for any reason and in its sole discretion the County shall determine that such termination is in its best interest and convenience. Notice of Termination. In the event of termination for the convenience of the County, the County shall deliver to the Contractor a written notice of termination, specifying the reasons therefor, and the effective date of such termination. The effective date shall not be earlier than the date of hand-delivery or the date of mailing of the notice, plus three (3) business days. The notice of termination shall be sent regular first-class mail to the address of the Contractor herein provided. Termination Procedure. After the effective date of the notice of termination for default or for the convenience of the County, unless otherwise directed by the County, the Contractor shall: (1) Stop work under the Contract on the date specified in the notice of termination. (2) Place no further orders for materials, services or facilities. (3) Terminate all orders and subcontractors to the extent that they relate to the performance of work terminated by the notice of term i nation. (4) With the approval or ratification of the County, settle all outstanding liabilities and all claims arising out of such termination on orders or subcontracts, the cost of which would be compensable or reimbursable in whole or in part in accordance with this Contract. Termination Payment. After the effective date of a notice of termination for the convenience of the County, the Contractor shall submit to the County his termination claim in the form of a final invoice in accordance with the provisions in "Method of Payment," including costs incur- red to the date of termination, and costs incurred because of termination, which termination costs shall not exceed 10% of the total amount of proposal; provided, however, that in the event of default by the Contractor, no extra costs incurred because of termination shall be paid to the Contractor and any costs paid shall not be a waiver of any claim, countemlaim or set-off by the County against the Contractor on account of any default. Such claim must be submitted promptly, but in no event later than thirty (30) days from the effective date of termination, unless one or more extensions are granted in writing by the County. Upon the Contractor's failure to submit a claim in the time allowed, the County may review the information available to it and determine the amount due the Contractor, if any, and pay the Contractor the amount as determined. Termination Settlement. Subject to Paragraph 4.D., the Contractor and County may negotiate the whole or any part of the amount or amounts to be paid, upon termination for default or for the convenience of the County. Remedies. The Contractor shall have the right of appeal from any determination made by the County under "Termination for Default or for Convenience of County;" except that if the Contractor has failed to submit his claim within the time provided in Paragraph 4.D., above, and has failed to properly request extension, he shall have no such right of appeal. In any case where the County has made a determination of the amount due under Paragraphs 4.D. or 4.E., above, the County shall pay the Contractor: (1) the amount the County has determined if there is no right to appeal or if no timely appeal 'has been taken, or (2) the amount finally determined on such appeal if an appeal has been taken. Method of Appeal. If the Contractor disagrees with the County's determination under Paragraphs 4.D. or 4.E., he can appeal this decision in writing to the County. Such appeal must be made within twenty (20) days of receipt in writing of the County's determination. The County shall have twenty (20) days in which to respond in writing to the appeal. The County's response shall be final and conclusive unless within thirty (30) days from the date of receipt of such response the Contractor submits the dispute to a court of competent jurisdiction or submits a demand for arbitration if required by the Contract Documents. INTEGRATION AND MODIFICATION This Contract constitutes the full and complete agreement of the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, the Contractor understands that unless the contract is for goods or services of a value less than $25,000, no County official or employee, other than the Board of County Commissioners acting as a body at a Board meeting, has authority to enter into a contract or to modify the terms of this contract on behalf of the County. Any such contract or modification to this contract must be in writing and be executed by the parties hereto. With respect to change orders under the Contract, the County and the Contractor shall process and approve/disapprove requests for change orders as othe~vise provided in this Contract, subject to the requirements of the Procurement Code and the Finance Office. INDEMNITY The Contractor (including, by definition here and hereinafter, its officials, employees, agents and representatives, subcontractors and suppliers), shall and hereby does release, discharge, indemnify and hold harmless the County of Pitkin and its officials, employees, agents and representatives from and against liability for any claim, demand, loss, damages, penalty, judg- ment, expenses, costs (including costs of investigation and defense), fees (including reasonable attorney and expert witness fees) or compensation in any form or kind whatsoever for any bodily injury, death, personal injury or property damage arising out of or in connection with any negligent act, intentional act, error or omission by the Contractor, and for any consequential liability alleged to accrue against the County on account of the Contractor's acts, errors or omis- sions; provided, however, that such indemnity shall not be construed as an indemnity for bodily injury or property damage arising from the sole negligence of the County or its employees. The Contractor further shall investigate, process, respond to, adjust, provide defense for and defend, pay or settle all claims, demands, or lawsuits related hereto at its sole expense and shall bear all other costs and expenses related thereto, even if the claim, demand or lawsuit is groundless, false or fraudulent. INSURANCE In whole or in part, the Contractor shall secure and maintain for the term of its contractual relationship with the County such insurance policies, from companies licensed in the State of Colorado, as will protect itself, the County and others as specified, from claims for bodily injuries, death, personal injury or property damage, which may arise out of or result from the Contractor's acts, errors or omissions. The following insurance coverage, at or above the limits indicated and including such endorsements as are indicated by an "X", are required: (1) Statutory Workers' Compensation: Colorado statutory minimums (2)Commercial General Liability - ISO 1998 Form or equivalent (CounO~ must be named us additional insured) Each Occurrence Limit $1,000,000.00 General Aggregate Limit $2~000,000.00 Products/Completed Operations Aggregate Limit $2,000,000.00 Comprehensive Form (All risks) to include: X Premises/Operations Underground, Explosion & Collapse Hazard X Products/Completed Operations X Contractual Liability X Independent Contractors and Subcontractors X Broad Form Property Damage X Personal Injury (3)Business Auto Coverage: Combined Single Limit Liability (each accident) $1,000,000.00 Coverage to include: X Any Auto All Owned Autos Hired Autos Non-Owned Autos Garage Liability (4) Special Coverages (check as appropriate): (1) Performance Bond 100% of contract Labor and Material Payment Bond 100% of contract (2) Professional Errors and Omissions (3) Aircraft Liability (4) Owner's Protective (5) Builder's Risk amount of proiect (6) Boiler and Machinery (7) Loss of Use Insurance (8) Pollution Liability (9) Crime, including Employee Dishonesty Coverage, or Fidelity Bond PROOF OF INSURANCE MUST BE SENT TO: Pitkin County Steve Howard Aspen Pitkin County Airport 0233 East Airport Road Aspen, CO 81611 (970) 920-5762 Fax To provide evidence of the required insurance coverage's, copies of Certificates of Insurance in a form acceptable to the County shall be filed with the County Risk Management Department no later than ten (10) calendar days prior to commencement of operations affecting the County. Failure to file or maintain acceptable Certificates of Insurance with the County is agreed to be a material breach of any contract and grounds for rescission or termination. These Certificates of Insurance shall contain a provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty (30) calendar days prior written notice by certified mail, return receipt requested (effective upon proper mailing), has been sent to the County (through the Procurement Officer). (For purposes of this provision, "materially altered" shall mean a change affecting the coverage's required herein, including a change to policy limits as set out in the then-current policy declarations page). Simultaneously with the Certificates of Insurance, the Contractor shall file with the County (and promptly update, as necessary) a certified statement as to claims pending against the required coverages, reserves established on account of such claims, defense costs expended and amounts remaining on policy limits. In addition, these Certificates of Insurance shall contain the following clauses: (1) The clause "other insurance provisions," in a policy in which the County of Pitkin holds a Certificate, shall not apply to the County of Pitkin. (2) The insurance companies issuing the policy or policies hereunder shall have no recourse against the County of Pitkin for payment of any premiums or for assessments under any form of policy. (3) Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole expense of the Contractor. (4) Location of operations shall be: "all operations and locations at which work for the referenced Project is being done." Certificates of Insurance for all renewal policies shall be delivered to the Procurement Officer at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Agreement or thereafter. The County reserves the right to request and receive a copy of any policy and any policy endorsement. 10. 11. EXEMPTIONS AND PREFERENCES All purchases of construction or building or any other materials for any Contract shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. Pitkin County is exempt from such taxes under registration numbers 98-02624 and 84-78000-5K. Pursuant to state statute and to the extent permitted by law, Colorado labor shall be employed to perform the work to the extent of not less than eighty percent (80%) of each type or class of labor employed on such project; except for highway construction, which is subject to C.R.S. 43- 2-208, which provides that all laborers shall be bona fide residents of Colorado with a preference to residents of the County where the work is performed. RECORDS The Contractor shall maintain comprehensive, complete and accurate books, records, and documents concerning its performance relating to this Project for a period of three (3) years after final payment on the Project and the County shall have the right within the three-year period to inspect and audit these books, records and documents, upon demand, in a reasonable manner and at reasonable times, for the purpose of determining, by accepted accounting and auditing standards, compliance with all provisions of the Contract and applicable law. SUCCESSORS AND ASSIGNS This Agreement and all of the covenants hereof shall insure to the benefit of and be binding upon the County and the Contractor respectively and their agents, representatives, employees, successors, assigns and legal representatives. Neither the County nor the Contractor shall have the right to assign or transfer its interest or obligations hereunder without the written consent of the other party, which consent shall not be unreasonably withheld. THIRD PARTIES This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Contractor or County may assign this Agreement in accordance with the specific written permission, any rights to claim damages or to bring any suit, action or other proceeding against either the County or Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 12. 13. 14. 15. 16. AGREEMENT MADE IN COLORADO The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. ATTORNEY'S FEES In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. NOTICES Unless otherwise provided in the Contract Documents, all notices under the Agreement shall be sent certified mail, return receipt requested, and shall be effective upon receipt or three (3) business days after mailing, whichever is first. GOVERNMENTAL IMMUNITY Contractor agrees and understands that Pitkin County is relying on and does not waive, by any provision of this Agreement, the monetary limitations or terms (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, 24-10-101, et. ~., C.R.S., as from time to time amended, or otherwise available to Pitkin County or any of its officers, agents or employees. Further, nothing in these Required Clause or any other Contract Document shall be construed or interpreted to require or provide for indemnification of the Contractor by the County for any injury to any person or any property damage whatsoever which is caused by the negligence or other misconduct of the County or its agent or employees. CURRENT YEAR OBLIGATIONS The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of Pitkin County. Pitkin County's obligations under this Agreement are subject to Pitkin County's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provisions of this agreement shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then current fiscal year of Pitkin County. No provision of this agreement shall be construed or interpreted as creating a multiple-fiscal year direct or indirect debt or other financial obligation of Pitkin County within the meaning of any constitutional or statutory debt limitation. This agreement shall not directly or indirectly obligate Pitkin County to make any payments beyond those appropriated for Pitkin County's then current fiscal year. No provisions of this agreement shall be construed to pledge or create a lien on any class or source of Pitkin County's moneys, nor shall any provision of this agreement restrict the future issuance of Pitkin County's bonds or any obligations payable from any class or source of Pitkin County's money.