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HomeMy WebLinkAboutbocc.con.075.2007 . CLERK'S CHECK LIST FOR CONTRACTS SUBMITTED TO CLERK AND RECORDER FOR SCANNING/ARCHIVING CONTRACT #: 075-2007 Originating Department/Division: TV & FM Broadcasting Contact Person: Renee Nofziger Project Name: FCC Attorney o BOCC AGENDA ITEM (BOCC signature required) Phone #: 5395 IZISTAFF AUTHORIZED SIGNATURE (per Revised Procurement Code 7/2005) Check procurement type: DNone DInformal DFormallZlSole Source DEmergency DState Bid 0 Check Contract Tvpe: Dollar Amount: 20,400 IZIServices/Maintenance DLicense/Use DLease o Construction DGoods, Equipment, Supplies DOther (e.g. revenue) Contractor/Business Contract Execution Automatic Renewal 2/23/07 N Budget Line ItemfLedger Number 003.477.00000.82010 DEmployment (for county employees) DIntergovemmental Agreement (Requires BOCC Action) DNon-Profit DQuasi-Public DGrant Agreements (Requires BOCC Action) DChange Order/Contract Amendment Complete Name: Garvey, Schubert and Baer Contract End Date: 3/1108 Term of Contract: I Year All Contracts should be proofed for the following: IZINo Pages Missing IZIIf a Page is Left Intentionally Blank -Note on Page IZIPage numbered consecutively IZIAIl Signatures Affixed IZIAIl Dates Filled In IZIAIl Other Blanks Filled In IZIAIl Exhibits Attached IZIAll Legal Descriptions Attached (if appropriate) IZINotice of Award/Proceed Attached (if appropriate) IZISpecial Instructions for Finance Department: IZISent to Clerk and Recorder for Scanning! Archiving IZIAuthorized Staff Person's Name: Renee BY CHECKING ABOVE AND ENTERING NAME, THE 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. Amended 10_16_06 \ Rev2/17/06dq CONTRACT FOR PROVISION OF SERVICES Contract # (] +C?-- :J_-(XI1- Budget Line Item #003.77.00000.82010 THIS CONTRACT is made and entered by and between the Pitkin County Board of County Commissioners ("County") and Garvey, Schubert and Baer (hereinafter "Contractor"). 1. Term. The term of this contract is from March 1, 2007 to March 1,2008. At the expiration of the initial term, the contract may be extended for an additional term of one year by the express written consent of both parties. 2. Contractor's Obligations. Contractor shall see scope of services attached as exhibit A. Payment Schedule: Monthly retainer Senior Attorney Associate Attorney Paralegal Services $275.00 $400.00/hour $200/hour $ I 50/hour 3. Compensation and Expenses. Invoicing. Pavment and Offset. The County shall compensate Contractor for its services in accordance with the Project Budget and Schedule set out in Paragraph 2. It is expressly understood and agreed that in no event will the total compensation and reimbursement to be paid hereunder exceed the sum of $20,000.00 for all services rendered. By contract or amendment, the County and Contractor may reallocate the budget among project tasks if the total budget amount remains unchanged. Contractor shall invoice for the project monthly based on hours worked, with payment expected within thirty (30) days of invoice, but any payment by the County may be offset by any amount the Contractor owes the County for any reason. 4. County's Exclusive Ownership of Work Product. Drawings, specifications, guidelines and other documents prepared by Contractor in connection with this contract shall be the property of the County. However, Contractor shall have the right to utilize such documents in the course of its marketing, professional presentations, and for other business purposes. Contractor assigns to County the copyrights to all work prepared, developed, or created pursuant to this contract, including the right to: I) reproduce the work; 2) prepare derivative works; 3) distribute copies to the public; 4) perform the works publicly; and 5) to display the work publicly. Contractor shall have right to use materials produced in the course of this contract for marketing purposes and professional presentations, articles, speeches and other business purposes. 5. Pitkin County's Obligations. Pitkin County shall administer this contract through a County Representative. Renee Nofziger will manage the project as the County's Representative. In the event that Renee Nofziger is not available, Brian Pettet shall assume the County Representative's duties. The services provided and products delivered by the Contractor under this contract will be subject to review by the County's Representatives, or a designee, for compliance with Contractor's obligations prior to final payment. 1 9- 6. Termination Prior to Expiration of Contract Term. The County has the right to terminate this contract, with or without cause, by giving written notice to the Contractor of such termination and specifying the effective date thereof. Such notice shall be given at least ten (10) days before the effective date of such termination. In such event all finished or unfinished documents, data, studies and reports prepared by the Contractor pursuant to this contract shall become the County's property. Contractor shall be entitled to receive compensation in accordance with the contract for any satisfactory work completed pursuant to the terms of this contract prior to the date of termination. Not withstanding the above, Contractor shall not be relieved of liability to the County for damages sustained by the County by virtue of any breach of the contract by the Contractor. 7. Independent Contractor Status. A. The parties to this contract intend that the relationship between them contemplated by the contract is that of independent Contractor. Contractor, and any agent, employee, or servant of Contractor shall not be deemed to be an employee, agent, or servant of Pitkin County. B. Contractor is not required to offer his services exclusively to Pitkin County under this contract. Contractor may choose to work for other individuals or entities during the term of this contract, provided that the basic services and deliverable products required under this contract are submitted in the manner and on the schedule defined under this contract. C. Contractor warrants that all work produced will conform to all applicable industry standard of care, skill and diligence in the performance of Contractor's obligations under this contract. D. Contractor shall not attempt to oversee or supervise the work or actions of any Pitkin County employee, servant or agent in the course of completing work under this contract. E. Contractor is not entitled to any Workers' Compensation benefits through Pitkin County and is responsible for payment of any federal, state, FICA and other income taxes. 8. Assignability. This contract is not assignable by either party. Any use of subcontractors by the Contractor for performance of this contract must be accepted in writing by the County. 9. Binding Arbitration. Any disputes arising out ofthis contract shall be subject to binding arbitration. The parties agree that any disputes concerning the terms and conditions of this contract shall be submitted and finally settled by arbitration. Arbitration shall be conducted pursuant to the rules of the American Arbitration Association and shall be presided over by the Pitkin County Hearing Officer appointed to arbitrate Pitkin County contract disputes. Costs of the arbitration shall be awarded to the substantially prevailing party. 2 ~ 10. Severability. In the event that any provision of this contract shall be held to be invalid or unenforceable, the remaining provisions of this contract shall remain valid and binding upon the parties hereto 11. Integration and Modification. A. This contract represents the entire and integrated contract between the County and the Contractor and supersedes all prior negotiations, representations, or contract, either written or oral. This contract may be amended only by written contract signed by both the County and the Contractor. B. The County may, from time to time, request changes in the scope of services of the Contractor to be performed hereunder. Such changes, including the increase or decrease in the amount of the Contractor's compensation, which are mutually agreed upon between the County and the Contractor, shall be in writing and upon execution shall become part of this contract. 12. Indemnity. A. 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 irtiury 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 omissions; 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. B. The Contractor further shall investigate, process, respond to, adjust, provide defense for and defend, payor 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. 13. Insurance. A. 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 irtiuries, 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 3 4 (With County named additional insured) Each Occurrence Limit General Aggregate Limit Products/Completed Operations Aggregate Limit $1.000,000.00 $2.000.000.00 $2.000.000.00 .lL .lL .lL .lL .lL Comprehensive Form (All risks) to include (place X by applicable provisions): .lL Premises/Operations Underground, Explosion & Collapse Hazard Products/Completed Operations Contractual Liability Independent Contractors and Subcontractors Broad Form Property Damage Personal Injury 3. Business Auto Coverage: Combined Single Limit Liability (each accident) $1.000.000.00 Including all owned, non-owned, and hired vehicles. 4. Special Coverages (check as appropriate and insert amount): (1 ) Performance Bond Labor and Material Payment Bond (2) Professional Errors and Omissions (3) Aircraft Liability (4) Owner's Protective (5) Builder's Risk (6) Boiler and Machinery (7) Loss of Use Insurance (8) Pollution Liability (9) Crime, including Employee Dishonesty Coverage, or Fidelity Bond B. Proof of Insurance: 1. To provide evidence of the required insurance coverage, copies of Certificates of Insurance in a form acceptable to the County shall be filed with the County through the representative identified in Paragraph 5, no later than ten (10) calendar days prior to com- mencement 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. 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 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). 4 . f,,- /' Simultaneously with the Certificates of Insurance, the Contractor shall file with the Procurement Officer 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. 2. In addition, these Certificates of Insurance shall contain the following clauses: a. 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. b. 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. c. 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. d. Location of operations shall be: "all operations and locations at which work for the referenced Project is being done." 3. Certificates of Insurance for all renewal policies shall be delivered to the County's Representative at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this contract or thereafter. 4. The County reserves the right to request and receive a copy of any policy and any policy endorsement at any time during the term of this contract. 14. Exemptions. All purchases of construction, building or any other materials for this 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. 15. Records. The Contractor shall maintain comprehensive, complete and accurate books, records, and documents concerning its performance relating to this contract for a period of three (3) years after final payment under the contract and the County shall have the right within the three (3) 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. 16. Contract Made in Colorado. The parties agree that this contract 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. 17. Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions of this contract beyond the arbitration described in Paragraph 9, the substantially prevailing party shall be entitled to its costs and reasonable attorney's fees. 5 (p 18. Governmental Immunity. Contractor agrees and understands that Pitkin County is relying on and does not waive, by any provision of this contract, 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. Seq., 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 this contract 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. 19. 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 contract are subject to Pitkin County's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provisions ofthe contract shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then current fiscal year of Pitkin County. No provision of the contract 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 contract 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 contract 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 contract restrict the future issuance of Pitkin County's bonds or any obligations payable from any class or source of Pitkin County's money. 20. Notice. Any written notice required by this contract shall be deemed delivered through any of the following: (1) hand delivery to the person at the address below; (2) delivery by facsimile with confirmation of receipt to the fax number below; or (3) within three (3) days of being sent certified first class mail, postage prepaid, return receipt requested addressed as follows: A. To Pitkin County Renee Nofziger c/o Pitkin County TV & FM Translator Administrator 76 Service Center Road Aspen, CO 81611 with copies to: Pitkin County Attorney's Office 530 E. Main Street, #302 Aspen, Colorado 8161 I B. To Contractor: Garvey Schubert & Baer 6 \\ ~ Henry S. Solomon, ESQ. 1000 Potomac St. NW Sth Floor Washington, DC 20007 IN WITNESS WHEREOF, the parties have executed this contract as of the date first set out herein above. .k~ By: Henry Solomon, ESQ ~rhQC~(Jt- f;g/dt Dat~ Title PITK!tl C,OUNTY: .: r ! 1(('-"" ,\ t' I ;. -') or- Date 7 ~ EXHIBIT A Scope of Services Retainer Coverage: The monthly retainer is to keep Pitkin County informed of developments within and beyond the FCC that may affect the County's interests as a licensee and cable regulator. They include notifications of the filing and disposition of radio applications within the areas served by the County's TV and FM translators; FCC news releases and decisions; written advisories addressing significant judicial and administrative rulings and rule making decisions that may interest the County in its dual capacities as a cable franchising authority and as a radio licensee; most requests by telephone or e-mail for opinions relating to a wide variety of issues which mayor may not have a direct bearing on the County's broadcast and non-broadcast interests and functions. An example of inquiries covered by the retainer would be a telephone or e-mail request for an interpretation of an FCC regulation which does not require extensive research, or request for a Commission order or decision. Virtually all routine research and document retrieval performed by paralegals or legal assistants (e.g., retrieving licenses, and reporting on the status of applications, rule makings, and litigation) are covered by the retainer. Neither the retainer (nor hourly charges) cover expenses Contractor may have incurred on the County's behalf such as duplication of pleadings and other documents, overnight mail, telephone and fax charges and similar items. All such items are set forth on monthly invoices. Non-Retainer Services: Just about all legal services not encompassed with the retainer's scope of work are billed at hourly rates. Where possible, tasks are assigned to qualified less senior attorneys or paraprofessionals so as to keep costs at a minimum. Typical hourly services that the Contractor provides to a governmental entity such as Pitkin County include, but are not limited to the following: advice and counsel relating to cable franchising; the preparation, filing and advocacy of applications at the FCC for new FM, FM translator, and TV translators, including modifications to existing facilities, temporary licensing, and assignments and transfers of licenses and construction permits to the County or by the County to others; the drafting or review of contracts, leases, settlement agreements, and other corporate-type documents; analyses of cases, rules and policies involving broadcasting and cable; participation on behalf of the County in FCC rule makings such as the proceeding that determined the regulatory treatment of competitive applications for noncommercial educational FM stations; conferences and communications with FCC staff members, including visits to the Commission's offices in Washington DC; and participation in litigation in which the County is a party such as grievance proceedings, the resolution of complaints files with the FCC by the County or against it: and the preparation, filing and advocacy of applications for renewal of all radio broadcast (and non-broadcast) communications licenses issued to the County. ~:.. 8 ~