HomeMy WebLinkAboutresolution.council.116-08RESOLUTION # ~ (~p
(Series of 2008)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND POSS ARCHITECTURE + PLANNING SETTING
FORTH THE TERMS AND CONDITIONS REGARDING ARCHITECTURAL
DESIGN SERVICES AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Poss Architecture + Planning, a copy of
which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and Poss Architecture + Planning regarding
architectural design services a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager of the City of Aspen to
execute sai contract on behalf of the City of Aspen.
Dated: ~~
Michael C. Irel nd, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held December 8, 2008.
hryn S. Koch, City Clerk
AGREEMENT FOR PROFESSIONAL ARCHITECTURAL SERVICES
This Agreement made and entered on the date hereinafrer stated, between the CITY OF
i~ SPEN, Colorado, ("City") and Poss Architecture + Planning. Colorado ("Architect").
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Scope of Services. Architect shall perform in a competent and professional
manner the Scope of Services as set forth at Exhibit "A" attached hereto and by this reference
incorporated herein.
2. Completion. Architect shall commence work immediately upon receipt of a
written Notice to Proceed from the City and complete all phases of the Scope of Work as
expeditiously as is consistent with professional skill and care and the orderly progress of the
Work in a timely manner. Upon request of the City, Architect shall submit, for the City's
approval, a schedule for the performance of Architect's services which shall be adjusted as
required as the project proceeds, and which shall include allowances for periods of time required
by the City's project engineer for review and approval of submissions and for approvals of
authorities having jurisdiction over the project. This schedule, when approved by the City, shall
not, except for reasonable cause, be exceeded by the Architect.
3. Payment. In consideration of the work performed, City shall pay Architect
$206,000 in the event that all Phases are performed as requested by City. The City shall have the
option of asking Architect to perform any number of Phases of the Project. Payment shall be
based upon the Fee Proposal, for phases performed. The City shall notify Architect of phases it
wishes to have performed via formal written Notices to Proceed. Fees (excluding any additional
services or reimbursable expenses shall not exceed the following amounts for each given phase:
Predesign Services: See Exhibit "B"
Site Analysis Services: See Exhibit "B"
Conceptual Design: See Exhibit "B"
4. Gontract Documents. The following documents are agreed to constitute the
Contract Documents. In the event that any provision of one Contract Document conflicts with
the provisions of another, the provision in the Contract Document listed first below shall govern,
except as otherwise specifically stated:
a. Agreement
b. Request for Proposals & Scope of Services
c. Proposal for Architectural Services dated September 4, 2008 and
attachments, including all written representations of Architect
d. Instructions to Proposers
e. Supplemental Conditions, if any
5. Compliance With Procurement Code. The Architect acknowledges that this
Agreement is entered into subject to the requirements of the City of Aspen Procurement Code,
Title 4, of the Aspen Municipal Code. As such, the Architect agrees to comply with all
requirements of said Procurement Code, and such requirements are incorporated herein by this
reference (copies of the code are available upon request to the City for a nominal charge).
Architect shall immediately notify the City Manager in writing of any violation of said Code by
the City's employees or agents, which violation(s) shall be considered a breach of this
Agreement. Further, failure to notify the City of any violation of the Procurement Code shall be
deemed as a waiver of any action or defense that the Architect may have against the City by
reason of such violation of the Procurement Code.
6. Non-Assienability. Both parties recognize that this contract is one for specific
services and cannot be transferred, assigned, or sublet by either party without prior written
consent of the other. Sub-Contracting, if authorized, shall not relieve the Architect of any of the
responsibilities or obligations under this agreement. Architect shall be and remain solely
responsible to the City for the negligent acts, errors, and omissions of any of his consultants,
agents and employees, each of whom shall, for this purpose be deemed to be an agent or
employee of the Architect to the extent of the subcontract. The City shall not be obligated to pay
or be liable for payment of any sums due which may be due to any sub-contractor.
7. Termination for Default or for Convenience of City.
a. Termination by City. The performance of services under this
Agreement may be terminated by the City:
1. Whenever the Architect shall default in performance of this Agreement 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 City may allow or shoRer, but not less than three (3) days, for failure
to provide proof of insurance or maintenance of any dangerous condition)
afrer hand-delivery or mailing to the Architect 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 Architect.
The Architect shall not be in default by reasons of any failure in
performance of this Agreement in accordance with its terms if such
failure arises out of causes beyond the control and without the fault or
negligence of the Architect. 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 of the
Architect. Upon request of the Architect, the City shall ascertain the facts
and failure, and, if the City shall determine that any failure to perform
constituted a valid commercial excuse, the performance shall be revised
accordingly and notice of default withdrawn; or
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2. Whenever for any reason and in its sole discretion the City shall
determine that such termination is in its best interest and convenient.
b. Notice of Termination. In the event of termination for the convenience
of the City, the City shall deliver to the Architect 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 Architect herein provided. The Architect or
the City may terminate this Agreement, without specifying the reason
therefor, by giving notice, in writing, addressed to the other party,
specifying the effective date of the termination. No fees shall be earned
after the effective date of the termination. Upon any termination, all
finished or unfinished documents, data, studies, surveys, drawings,
maps, models, photographs, reports or other material prepared by the
Architect shall become the property of the City. Notwithstanding the
above, Architect shall not be relieved of any liability to the City for
damages sustained by the City by virtue of any breach of this
Agreement by the Architect, and the City may withhold any payments
to the Architect for the purposes of set-off until such time as the exact
amount of such damages due the City from the Architect may be
determined.
c. Termination Procedure. After the effective date of the notice of
termination for default or for the convenience of the City, unless
otherwise directed by the City, the Architect shall:
Stop work under the Agreement 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 termination.
4. With the approval or ratification of the City, settle all
outstanding liabilities and all claims arising out of such
termination on orders or reimbursable in whole or in part in
accordance with this Agreement.
d. Termiaatiw~ Payment. After the effective date of a notice of termination
for the convenience of the City, the Architect shall submit to the City
his termination claim in the form of a final invoice in accordance with
the provisions in Section 3 hereinabove, including costs incurred and
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profit to the date of termination (but not for future profit, which shall
not be paid), 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 Architect, no
extra costs incurred because of termination shall be paid to the
Architect and any costs paid shall not be a waiver of any claim,
counterclaim or setoff by the City against the Architect 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 City. Upon the
Architect's failure to submit a claim in the time allowed, the City may
review the information available to it and determine the amount due the
Architect, if any, and pay the Architect the amount as determined.
e. Termination Settlement. Subject to Paragraph S.d, the Architect and
City may negotiate the whole or any part of the amount or amounts to
be paid, upon termination for default or the convenience of the City.
Remedies. The Architect shall have the right of appeal from any
determination made by the City under this termination section; except
that if the Architect has failed to submit his claim within the time
provided in Paragraph S.d, above, and has failed to properly request an
extension, he shall have no right of appeal In any case where the City
has made a determination of the amount due under Paragraph S.d. or
S.e., above, the City shall pay the Architect (1) the amount the City has
determined if there is no light of appeal or if timely appeal has been
taken, or (2) the amount finally determined on such appeal if an appeal
has been taken.
g. Method of Appeal. If the Architect disagrees with the City's
determination under Paragraphs S.d. or S.e., he can appeal this decision
in writing to the City. Such appeal must be made in writing within
twenty (20) days of receipt in writing of the City's determination. The
City shall have twenty (20) days in which to respond in writing to the
appeal. The City's response shall be final and conclusive unless within
thirty (30) days from the date of receipt of such response the Architect
submits the dispute to a court of competent jurisdiction.
8. Covenant Against Continent Fees. The Architect warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Architect, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or
person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or
any other consideration contingent upon or resulting from the award or making of this contract.
For a breach or violation of this contract without liability, or in its discretion to deduct from the
contract price or consideration, or otherwise recover, the fun amount of such fee, commission,
percentage, brokerage fee, gift or contingent fee.
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9. Independent Contractor Status. It is expressly acknowledged and understood by
the parties that nothing contained in this agreement shall result in, or be construed as establishing
an employment relationship. Architect shall be, and shall per`orm as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No
agent, employee, or servant of Architect shall be, or shall be deemed to be, the employee, agent
or servant of the City. City is interested only in the results obtained under this contract. The
manner and means of conducting the work are under the sole control of Architect. None of the
benefits provided by City to its employees including, but not limited to, workers' compensation
insurance and unemployment insurance, are available from City to the employees, agents or
servants of Architect. Architect shall be solely and entirely responsible for its acts and for the
acts of Architect's agents, employees, servants and subcontractors during the performance of this
contract. Architect shall indemnify City against al] liability and loss in connection with, and shall
assume full responsibility for payment of all federal, state and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax law, with
respect to Architect and/or Architect's employees engaged in the performance of the services
agreed to herein. ARCHITECT, AS AN INDEPENDENT CONTRACTOR, SHALL NOT
BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE
OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONIES
EARNED PURSUANT TO THIS AGREEMENT.
10. Indemnification. Architect agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and
demands, on account of injury, loss, or damage, including claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, which arise out of or are in
any manner connected with this contract, if such injury, loss, or damage is caused in whole or in
part by, or is claimed to be caused in whole or in part by, the negligent act, omission, error, of
the Architect, any subcontractor of the Architect, or any officer, employee, representative, or
agent of the Architect or of any subcontractor of the Architect, or which arises out of any
workmen's compensation claim of any employee of the Architect or of any employee of any
subcontractor of the Architect. The Architect agrees to investigate, handle, respond to, and to
provide defense for and defend against, any such liability, claims or demands at the sole expense
of the Architect, or at the option of the City, agrees to pay the City or reimburse the City for the
defense costs incurred by the City in connection with, any such liability, claims, or demands. The
Architect also agrees to bear all other costs and expenses related thereto, including court costs
and attorney fees, whether or not any such liability, claims, or demands alleged are groundless,
false, or fraudulent. If it is determined by the final judgment of a court of competent jurisdiction
that such injury, loss, or damage was caused in whole or in part by the act, omission, or other
fault of the Gity, its officers, or its employees, the City shall reimburse the Architect for the
portion of the judgment attributable to such act, omission, or other fault of the City, its officers,
or employees.
11. Architect's [nsurance. (a) Architect agrees to procure and maintain, at its own
expense, a policy or policies of insurance sufficient to insure against all liability, claims,
demands, and other obligations assumed by the Architect pursuant to Section 8 above in amounts
and aggregates as stated below. Such insurance shall be in addition to any other insurance
requirements imposed by this contract or by law. The Architect shall not be relieved of any
liability, claims, demands, or other obligations assumed pursuant to Section 6 above by reason of
its failure to procure or maintain insurance, or by reason of its failure to procure or maintain
insurance in sufficient amounts, duration, or types.
(b) Architect shall procure and maintain, and shall cause any subcontractor of the
Architect to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City. All
coverages shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Architect pursuant to Section 8 above. In the case of any claims-
made policy, the necessary retroactive dates and extended reporting periods shall be procured to
maintain such continuous coverage.
(i) Workmen's Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this
contract; and Employers' Liability insurance with minimum limits of no less than the state
of Colorado statutory minimums. Evidence of qualified self-insured status may be
substituted for the Workmen's Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) each occurrence
and SIX HUNDRED THOUSAND DOLLARS ($600,000.00) aggregate. The policy
shall be applicable to all premises and operations. The policy shall include coverage for
bodily injury, broad form property damage, personal injury (including coverage for
contractual and employee acts), blanket contractual, and independent contractors. The
policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than THREE HUNDRED
THOUSAND DOLLARS ($300,000.00) each occurrence and THREE HUNDRED
THOUSAND DOLLARS ($300,000.00) aggregate with respect to each Architect's
owned, hired and non-owned vehicles assigned to or used in performance of the Scope of
Work. The policy shall contain a severability of interest provision. If the Architect has no
owned automobiles, the requirements of this Section shall be met by each employee of
[he Architect providing services to the City under this contract.
(iv) Architect Liability insurance with the minimum limits of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000) each claim and TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000) aggregate.
(c) The policy or policies required above (except the Architect Liability insurance)
shall be endorsed to include the City and the City's officers and employees as additional
insureds. Every policy required above shall be primary insurance, and any insurance carved by
the City, its officers or employees, or carried by or provided through any insurance pool of the
City, shall be excess and not contributory insurance to that provided by Architect. The Architect
shall be solely responsible for any deductible losses under any policy required above.
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(d) The certificate of insurance provided by the City shall be completed by the
Architect's insurance agent as evidence that policies providing the required coverages,
conditions, and minimum limits are in full Force and effect, and shall be reviewed and approved
by the City prior to commencement of the contract. No other form of certificate shall be used.
The certificate shall identify this contract and shall provide that the coverages afforded under the
policies shall not be canceled, terminated or materially changed until at least thirty (30) days
prior written notice has been given to the City.
(e) Failure on the part of the Architect to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of contract
upon which City may immediately terminate this contract, or at its discretion City may procure
any such policy or any extended reporting period thereto and may pay any and all premiums in
connection therewith, and all monies so paid by City shall be repaid by Architect to City upon
demand, or City may offset the cost of the premiums against monies due to Architect from City.
(f) City reserves the right to request and receive a certified copy of any policy and
any endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not
waive or intend to waive by any provision of this contract, the monetary limitations (presently
$150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and
protection provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq.,
C.R.S., as from time to time amended, or otherwise available to City, its officers, or its
employees.
12. City's Insurance. The parties hereto understand that the City is a member of the
Colorado [ntergovemmental Risk Sharing Agency (CIRSA) and as such participates in the
CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of
Aspen Finance Department and are available to Architect for inspection during normal business
hours City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Architect reasonable notice of any changes in its membership or
participation in C[RSA.
13. Exemption From Sales and Use Taxes. All purchases of construction, building or
other materials for any agreement shall not include Federal Excise Taxes or Colorado State or
local sales or use taxes. Gity is exempt from such taxes under applicable federal, state and local
laws. Owner's State of Colorado tax identification number is 98-04557. City's Federal Tax
Identification Number is 84-6000563.
14. Ownership of Desien Materials and Documents.
a. The copies or other tangible embodiments of all design materials, whether or not
such materials are subject to intellectual property protection, including but not
limited to documents, shop drawings, computer programs developed for the
Project or if such programs are not the property of Architect or Subcontractor,
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data, plans, drawings, sketches, illustrations, specifications, descriptions, models,
as-built docurrlents, and any other documents developed, prepared, furnished,
delivered or required to be delivered by the Architect or Subcontractor to City
under the Contract Documents (collectively "Design Materials") shall be and
remain the property of the City whether or not the Project is commenced or
completed; provided, however, that City makes payment for the documents in
accordance with this Agreement. During the term of the Agreement, the Architect
shall be responsible for any loss or damage to the Design Materials, while the
Materials are in the possession of the Architect or any of its Subcontractors, and
any such Design Materials lost or damaged shall be replaced or restored at the
Architect's expense. The intellectual property rights, if any, to the contents of or
concepts embodied in the Design Materials shall belong to the Architect or its
Design Subcontractors in accordance with their contractual relationship and may
be copyrighted by them in the United States or in any other country, or be subject
to any other intellectual property protection. '
b. As to those Design Materials subject to copyright or as to which patent or
trademark, or any other form of intellectual property protection has been, is or
will be obtained, the Architect grants to City as of the date that the Design
Materials are delivered or required to be delivered to the City, aworld-wide, paid-
up, nonexclusive, nontransferable (except as provided) license for the term of
intellectual property protection, for the City to use, reproduce and have
reproduced, display and allow others to display and to publish and allow others to
publish, in any manner, at any time and as often as it desires, with or without
compensation to the Architect or any third party subject to the following
restrictions: (a) All copyright and other intellectual proprietary rights in or
relating to any of the Design Materials, shall remain the property of the Architect
or Design Subcontractor whether or not the Project is constmcted. It is understood
that, except as provided in this paragraph, the Architect and Design Subcontractor
shall have the right to use any detail, part, concept or system(s) shown on,
specified in, or inferable from the Design Materials on any other project and to
retain copies for the Architect's or Design Subcontractor's future use; (b) City
shall not, without prior written consent of the Architect or Design Subcontractor
use Design Materials or documents, in whole or in part, for the construction of
any other project. If, however, City agrees to indemnify the owner of the
intellectual property rights against liability arising from the misuse or incorrect
use of Design Materials by City, City shall be entitled to, at no additional cost to
the City, use such materials and documents for additions, improvements, changes
or alterations to [he Project after completion; provided, however, that the
materials and documents shall not be used for additional phases of this Project. [f
Architect is in default under this Contract and the Contract is terminated, City
shall be entitled to use the Design Materials for completion of the Project by
others without additional compensation, or a release, indemnification or other
action by City; (c) Any reproduction of the Design Materials or part of them shall
be faithful and accurate to the original and of good quality; (d) City shall not
remove or alter, and shall reproduce and prominently display on all copies made
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by City, the copyright notice and other proprietary legends appearing on the
Design Materials when delivered to City. The restrictions set forth in (c) and (d)
above shall be imposed by City on any third party to whom the City allows to
display or publish the Design Materials. Notwithstanding anything contained in
this Agreement to the contrary, the City shall not use Architect's name in any
project literature without Architect's prior written consent. All identifying
information on Architect's Design Materials shall be removed prior to
distributing them in any bid packet or to the supplanting architect. Architect shall
not be liable for any damages arising from changes made to the Design
Materialsby the City or any other party.
c. It is understood that City considers the Project's aggregate architectural
expression (that is, the overall combination of the Project's visually appazent
design features) and any distinctive individual features, to be unique and of
commercial value, and the Architect and its Design Subcontractors agree not to
design or build, or allow other third parties the use of the Design Materials to
design or build another structure(s) having a substantially similar architectural
expression so that an average person would relate the structure(s) to the- Project.
Architect and its Design Subcontractors shall, however, be free to use individual
features from the Project or combinations of features in other projects, so long as
the Architect complies with the first sentence of this paragraph. Architect shall
include this provision in its contracts with its Design subcontractors and provide
copies of these agreements to City.
d. As of the conclusion of the Project, or in the event of termination of the
Agreement, Architect shall tum over to City any of the Design Materials referred
to in above which have not yet been submitted to City. Architect shall submit the
Design Materials to City within ten days of the conclusion of the project, or date
of termination. In the event of the failure by Architect to make such delivery as
provided above, Architect shall pay City any damages City may sustain from the
failure.
15. Annual Anyropriations. If the Agreement awarded as a result of a bid or request
for proposals extends beyond the calendar year, nothing herein shall be construed as an
obligation by the City beyond any amounts that may be, from time to time, appropriated by the
City on an annual basis. It is understood that payment under any agreement is conditional upon
annual appropriation of funds by said governing body and that before providing services or
materials for which funds have not been appropriated.
16. Comuleteness of Agreement. It is expressly agreed that this agreement contains
the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal
or written representations, agreements, warranties or promises pertaining to the project matter
thereof not expressly incorporated in this writing.
17. Notice. Any written notices as called for herein may be hand delivered to the
respective persons and/or addresses listed below or mailed by certified mail return receipt
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requested, to:
City:
City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Architect:
Stephen Holley
Poss Architecture + Planning
605 Fast Main Street
Aspen, CO 81611
18. Non-Discrimination; penalty. No discrimination because of race, color, creed, sex,
marital status, affectional or sexual orientation, family responsibility, national origin, ancestry,
handicap, or religion shall be made in the employment of persons to perform services under this
contract. Architect agrees to meet all of the requirements of City's municipal code, Section 13-
98, pertaining to non-discrimination in employment.
19. Waiver. The waiver by the City of any term, covenant, or condition hereof shall
not operate as a waiver of any subsequent breach of the same or any other term. No term,
covenant, or condition of this Agreement can be waived except by the written consent of the
City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a
waiver of any term, covenant, or condition to be performed by Architect to which the same may
apply and, until complete performance by Architect of said term, covenant or condition, the City
shall be entitled to invoke any remedy available to it under this Agreement or by law despite any
such forbearance or indulgence.
20. Execution of Agreement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns.
Notwithstanding anything to the contrary contained herein, this agreement shall not be binding
upon the City unless duly executed by the City Manager or Mayor of the City of Aspen (or a
duly authorized official in his absence) fallowing a Motion or Resolution of the Council of the
City of Aspen authorizing the City Manager or Mayor (or duly authorized official in his absence)
to execute the same.
21. General Terms.
(a) It is agreed that neither this agreement nor any of its terms, provisions,
conditions, representations or covenants can be modified, changed, terminated or amended,
waived, superseded or extended except by appropriate written instrument fully executed by the
parties.
(b) If any of the provisions of this agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution
hereof and that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
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(d) This agreement shall be governed by the laws of the State of Colorado as from
time to time in effect.
(e) There are no third party beneficiaries to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be
executed by their duly authorized officials, this Agreement in three copies each of which shall be
deemed an original on the date hereinafter written.
Dated:
ATT STED BY:
WITNESSED BY:
CITY OF ASPEN, COLORADO:
S ~ ~1~~~
By:
ARCHITECT:
Bill Poss & Associates, Architecture &
Planning, P.C.
By:
Bill P ss President
APPROVED AS TO FORM BY:
~ ~ ttorney ~
~Z/~°/ d~
By:
REVIEWED BY:
Project Manager
EXHIBIT "A"
Scope of Work
SCOPE OF SERVICES
Phase I Predesign Services. This includes assisting the Owner in establishing the architectural
program, financial and time requirements and limitations for the project prior to beginning
design.
Phase 2 Site Analysis Services. These services will be provided during the predesign phase and
other phases during project design. These services include coordination with the landscape
architect in order for the landscape architect and civil engineer to provide sketches and drawings
which outline land utilization, structure placement, utility systems and landscape concepts and
forms.
Phase 3a Conceptual Design. Conceptual Design includes an analysis of the requirements for the
project and preparation of design studies which illustrate the scale and relationship of the project
components.
Phase 9 Supplemental Services. These are special studies, surveys, designs, and documentation
in addition to the Basic Services outlined above in Phase 1 through 3a. These studies may be
provided in a single phase or during several phases, when requested in writing by the Owner.
These surveys, studies, designs, and documentation are billed as Additional Services to this
agreement and are not included in the Basic Services.
Supplemental services are defined as variance requests, zoning processing, historic preservation
review, 1041 hazard or special review procedures, public hearings and renderings and models for
project promotion.
Services for interior design are defined as the selection of furniture, finishes, fabrics, and wall
coverings.
Services for interior architecture are defined as the design and documentation of interior features
including stairs, fireplaces, millwork and cabinetry, trusses, and paneling-
Due to the expedited nature of the scope of services requested the above outlined Phases will run
concurrently over the course of a specific time period in order to meet the schedule of the Owner.
Three milestones have been identified with specific project deliverables which are outlined in
Schedule Target Completion Dates, below.
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OWNER'S RESPONSIBILITIES
1. Survey. The Owner agrees to provide a site survey with all information relating to any
dominant estates on the property, a project program, project budget, schedule, radon testing,
hazardous material evaluation, and information relating to the sewer, storm sewer, water, gas
services and other utilities when applicable.
2. Geotechnical Investigation. The Owner shall provide a soils report showing all soils
conditions and percolation tests when required. A soils engineer shall make all recommendations
for surface drainage requirements, when applicable.
3. Record Title Holder Owner warrants and represents that it is the sole record title holder of the
property described above or, if it is not the record title holder, that the record title holder has
provided Owner with authority to contract for this work with Architect for the benefit of the
property.
4. Progress Review and Sign-Offs During the project, on Milestones 1 through 3, the Architect
will provide the Owner with a progress set for review and sign-off. The purpose of these reviews
and signoffs is to ensure the project is continuing on a direction suitable to the Owner.
The Owner should review any set submitted to it as quickly as possible and make any comments
regarding incorrect issues in writing. If the Owner fails to respond to a sign-off request or makes
changes to portions of the work already signed-off upon, the Architect will make a request for
Additional Services as described in Exhibit B in order to adjust the design or the documents.
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SCHEDULE TARGET COMPLETION DATES
The following is an estimate of the dates for performances of the Schedule of Services:
Milestone 1 September 4, 2008
1. Block Unit Diagrams (For up to three Site and Capacity Schemes)
2. Code Analysis and Accessibility Analysis in support of the Site Plan
3. Drafr Conceptual Specifcation (General Conditions Only)
4. Attendance as required at meetings with the Asset Management Department, City of Aspen
Staff, City of Aspen Governing Bodies and Burlingame ROA
Milestone 2 October 2, 2008
Building Floor Plans
Unit Plans
3. Preliminary Massing Section Studies
4. Conceptual Building Elevations (One elevation each for a Small, Medium and Large structure)
5. Draft Conceptual Specification
6. Attendance as required at meetings with the Asset Management Department, City of Aspen
Staff, City of Aspen Governing Bodies and Burlingame ROA
Milestone 3 November 6, 2008
I .Building Floor Plans
2. Primary Building Elevations
3. Conceptual Specification
4. Attendance as required at meetings with the Asset Management Department, City of Aspen
Staff, City of Aspen Governing Bodies and Burlingame ROA
If, through no fault of the Architect, the project extends beyond the ending date identified as
Milestone 3, and the Architect can demonstrate additional costs due to the extended schedule, the
Architect is entitled to compensation for additional project management and overhead cost as an
Additional Service.
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EXHIBIT "B"
Rate Schedule
COMPENSATION
l .Fee Structure. For this project, the Architect will use the following fee structure:
Phase 1 through Phase 3a
For these phases, the Architect will bill hourly on a time and materials basis for services
rendered. For the Owner's planning purposes, the Architect will provide the Owner with an
estimate of the anticipated professional services fees for these phases over the course of the three
milestones. However, due to the varied nature of the creative design process, this estimate should
not be considered a top set fee for these phases.
Phase 9
As stated in Exhibit "A", these services, if required, will be considered Additional Services and
the Architect will bill hourly on a time and materials basis for services rendered.
2. Hourly Billine Rates for Professional Services. The following hourly billing rates for
professional service will be used by the Architect for services rendered in Phases 1 through 3a
and for services rendered as Additional Services as described in Paragraph I below.
Classification Hourly Rate
Principal/Sr. Principal/Partner $200.00 to $275.00
Associate/Sr. Associate $175.00 to $200.00
Project Manager/Project Architect/Sr. Project Manager $120.00 to $175.00
Job Captain/Sr. Job Captain $90.00 to $120.00
Jr. Draftsman/Intern/Draftsman/Sr. Draftsman $60.00 to $90.00
Project Support Staff $60.00 to $90.00
Office/Support Staff $50.00 to $100.00
The hourly rates set forth above shall be adjusted in accordance with normal salary review
practices of the Architect.
3. Reimbursable Expenses are in addition to compensation for architectural services.
Reimbursable expenses shall include reproduction costs, postage, long distance telephone and
reasonable travel expenses.
4. Estimated Fees. Architect estimates that the total fees for Basic Architectural Services for the
project will be between $140,000 and $185,000, allocated to each of three milestones shown
below. The fee includes only the Architects professional services for Basic Architectural
Services.
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Architectural Fee Estimate:
Phases I through 3a (Estimated Fee)
Milestone 1 (09/03/2008) $52,000.00*
Milestone 2 (10/03/2008) $70,000.00
Milestone 3 (11/03/2008) $63,000.00
Total Basic Architectural Fee $185,000.00
*Incl usive of all work perfOlmed to date. (Amount already billed is $35,588.34)
Phases 9 (Estimated Fee)
Perspective Renderings (2 Renderings) $ 3,000.00
3D Model (Stmctures and Site Integration) $ 18,000.00
Total Architectural Fee (Additional Services) $ 21,000.00
Grand Total of Estimated Architectural Fees for this Contract: $206,000.00
1(i
Certification and Supplemental Conditions to Contract for Services Conformance with §8-
17.5.101, et sea.
Puroose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06-
1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal
Aliens Public Contracts for Services." This new law prohibits all state agencies and political
subdivisions, including the City of Aspen, from knowingly employing of contracting with an
illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who
knowingly employs or contracts with an illegal alien to perform work under the contract. The
new law also requires that all contracts for services include certain specific language as set forth
in the statutes. This Certification and Supplemental Conditions has been designed to comply with
the requirements of this new law.
Applicability. The certification and supplemental conditions set forth herein shall be required to
be executed by all persons having a public contract for services with the City of Aspen.
Definitions. The following terms are defined in the new law and by this reference are
incorporated herein and in any contract for services entered into with the City of Aspen.
"Basic Pilot Program" means the basic pilot employment verification program created in
Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress,
as amended, that is administered by the United States Department of Homeland Security.
"Contractor" means a person having a public contract for services with the City of Aspen
"Public Contract for Services" means any type of agreement, regardless of what the
agreement may be called, between the City of Aspen and a Contractor for the procurement of
services. It specifically means the contract or agreement referenced below.
"Services" means the famishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that are
merely incidental to the required performance.
PURSUANT TO SECTION 8-17.5-101, C.R.S., et. seq.:
By signing this document, Contractor certifies and represents that at this time:
(i) Contractor does not knowingly employ or contract with an illegal alien; and
(ii) Contractor has participated or attempted to participate in the Basic Pilot Program in
order to verify that it does not employ illegal aliens.
The Public Contract for Services referenced below is hereby amended to include the following
terms and conditions:
1. Contractor shall not knowingly employ or contract with an illegal alien to perform work
under the Public Contract for Services.
2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the
Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to
perform work under the Public Contract for Services.
3. Contractor has verified or has attempted to verify through participation in the Federal
Basic
Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been
accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for
Services, Contractor shall forthwith apply to pal l icipate in the Federal Basic Pilot Program and
shall in writing verify such application within five (5) days of the date of the Public Contract.
Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in
writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the
public contract for services has been completed, whichever is earlier. The requirements of this
section shall not be required or effective if the Federal Basic Pilot Program is discontinued.
4. Contractor shall not use the Basic Pilot Program procedures to undertake pre-employment
screening of job applicants while the Public Contract for Services is being performed.
5. If Contractor obtains actual knowledge that a subcontractor performing work under the
Public
Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall:
(i) Notify such subcontractor and the City of Aspen within three days that Contractor has
actual knowledge that the subcontractor is employing or contracting with an illegal alien; and
(ii) Terminate the subcontract with the subcontractor if within three days of receiving the
notice required pursuant to this section the subcontractor does not cease employing or
contracting with the illegal alien; except that Gontractor shall not terminate the Public Contract
for Services with the subcontractor if during such three days the subcontractor provides
information to establish that the subcontractor has not knowingly employed or contracted with an
illegal alien.
b. Contractor shall comply with any reasonable request by the Colorado Department of
Labor
and Employment made in the course of an investigation that the Colorado Department of Labor
and Employment undell akes or is undertaking pursuant to the authority established in
Subsection 8-17.5102 (5), C.R.S.
7. If Contractor violates any provision of the Public Contract for Services pertaining to the
duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public
Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be
liable for actual and consequential damages to the City of Aspen arising out of Contractor's
violation of Subsection 8-17.5-102, C2.S.
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Public Contract for Services:
Cot
By:
Title: ~~e5(~'(~~'
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