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HomeMy WebLinkAboutresolution.council.073-09RESOLUTION # 7~ (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND PFOCUS, LLC SETTING FORTH THE TERMS AND CONDITIONS REGARDING WHEELER OPERA HOUSE 21sT MASTER PLAN PROGRAM MANAGER 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 Pfocus, LLC, 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 Pfocus, LLC regarding Wheeler Opera House 21 S` Master Plan Program Manager a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: [ /-ti's 1, Michael C. Ire and, 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 September 28, 2009. ~ ~~ Ka ryn S. Koch, City Clerk NOTICE TO PROCEED THE yin oe Aseeh 130 S. Galena Sheet Aspen, Coloredo 81611 Check only one category: ^Mailed ^Faxed Date: 9.30.2009 Project No. 12E: Wheeler 21°` Century -Program Manager LLC Dear Mr. Pfannenstiel: Enclosed please fmd an executed copy of the Contract Documents for the above referenced project. AIA Document B801 CMa - 1992, dated 9.4.2009 Between the Owner -The City of Aspen and The Program Manager - Pfocus, LLC. You are hereby notified to proceed according to the Scope of Work and to coordinate with the Project Manager, Stephen Bossart If you have any questions concerning this project please do not hesitate to call 970.429.1790 The Scope of Work has been approved as follows: Contract Exhibit "A" -Scope of Services 1. Conceptualization Phase With compensation according to: AIA Document B801 CMA - 1992 Paragraph 13.2 13.2.1 Basic Services; Conceptualization Phase: $75,686 Paragraph 13.4 13.4.1 Reimbursable Expenses: $ 5,540 (Additional services to be paid according to Par. 13.3.1) Again, thank you for your bid and your continued interest in this project. Sincerely, CITY OF ASPEN By: Stephen W. Bossart, Project Manager ec: City Manager City Attorney Finance Department =-=A A Document B801~CMa -1992 Standard Form of Agreement Between Owner and Program Manager where the Program Manager is NOT a Constructor AGREEMENT made as of the (Paragraphs deleted) 4th day of September in the year of 2009 BETWEEN the Owner: (Pamgraphs deleted) The City of Aspen 130 South Galena Street Aspen, CO 8161 t and the Program Manager PFocus, LLC 1425 North 1st Street, Suite 100 Phoenix, Arizona 85004 for the following Project Wheeler Opera House 21st Century Master Plan Aspen, Colorado (Pamgmplu deleted) The Archited is: Farewell Mills Gatsch Architects, LLC 200 Forrestal Road Princeton, NJ 08540 The Owner and Program Manager agree as set forth below. ADDITIONS AND DELET10N3: The author d this document has added information needed for its completion. The author may also have reWSed the text d the original AIA ctandard farm. An Adddions and Deletions Report that notes added information as well as reWSiorls to the stantlard torm tent is available From the author and should be reWewed. A verikal line In the Idl margin d lltis daumenl indicates where the audlor has added necessary infarmaton and where the author has added to or deleted from the aryinal AIA to#. This document has important legal wrlaequerlces. Consultation with an edomey is encouraged with respect to Its completion or modification. This document is imended lobe used in conlunctlan with the 1992 editions d AIA Documents 8141/CMa, A10i/CMa and A201/CMa. ARTICLE 1 PROGRAM MANAGER'S RESPONSIBILRIES (Paragraph deleted) § 1.1 PROGRAM MANAGER'S SERVICES § 1.1.1 The Program Manager's services consist of those services performed by the Program Manager, Program Manager's employees and Program Manager's consultants as enumerated in Artides 2 and 3 of this Agreement and any other servil~s induded in Article 14. § 1.1.2 The Program Manager's services shall be provided in conjundfon with the services of an Architect, ConUactor(s), and other Owner's consultants, (the Project Team) who will be selected by the Owner in selection process(es) where the Program Manger will be involved and conVibute Its knowledge and expertise. Inlt AIA Doeumam Ba07 °CMa ~ 19@. Cppyri9MO 1873, 1980 aM 1992 by Tha Amerkan Instlada of Amhilacls. M1 H9w naarvlw. wAftrvmU: I nis am Document is protectetl by U.S. CopydBht law and International Treaties. Unauthodaed reproduction or distribution of this AIA® Document, or any ponion of iq may result In severe civil antl criminal peoallles, and will be prosecuted to /he m¢aimum extent possibl¢ under the law. Thk tlocumam / was produced by AIA so8ware M 11:33:55 on 08/09r1009 antler ONer No.1000398152_t whim eapaes on 04/22!2010, antl is not for resat. (184937175d) Uaar abW: ~~ ~ yam, , § 1.1.3 The Program Manager shall provide sufficient organization, personnel and management to carry out the requirements of this Agreement in an expeditious and economical manner consistent with the interests of the Owner. § 1.1.4 The services covered by this Agreement are subject to the time limitations contained in Section 13.5.1. ARTICLE 2 SCOPE OF PROGRAM MANAGER'S BASIC SERVICES (Paragraph deleted) § 2.1 DEFINITION § 2.1.1 The Program Managers Basic Services consist of those described in Sections 2.2 and any other services identified in Attitie 14 as part of Basic Services. § 2.2 PRE-CONSTRUCTION PHASE $ 2.2.1 The Program Manager shall provide services as set forth in F~chibit A -Scope of Services for Program Manager. (Paragraphs deleted) ARTICLE 3 ADDITIONAL SERVICES § 3.1 GENERAL § 3.1.1 The services described in this Artitie 3 are not included in Basic Services unless so identified in Article 14, and they shall be paid for by the Owner as provided in this Agreement, at the hourly rates in ExNbit B -Hourly Rates, in addition to the compensation for Basic Services. The Optional Additional Services described under Section 3.3 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.2 are required due to circumstances beyond the Program Manager's control, the Program Manager shall notify the Owner in wdtlng prior to commenting such services. If the Owner deems that such services described under Section 3.2 are not required, the Owner shall give prompt written notice to the Program Manager. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Program Manager shall have no obligation to provide those services and the Owner shall have no obligation to pay for those services. § 3.2 CONTINGENT ADDITIONAL SERVICES § 3.2.1 Providing services required because of significant changes in the Project including, but not limited to, changes in size, quality, complexity or the Owners schedule. § 3.2.2 Providing consultation concerning replacement of Work damaged by fire or other cause during consuuation, and famishing services required in connection with the replacement of such Work. § 3.2.3 Providing services made necessary by the termination or default of the Architect or a Contractor, by major defects or deficiencies in the Work of a Contractor, or by failure of performance of either the Owner or Contractor under a ConVact for ConsWCtion. § 3.2.4 Providing services in evaluating an extensive number of tiaims, change in conditions, Change Order Requests, Change Directives, and/or Change Orders submitted by a ConVactor or others in connection with the Work. § 3.2.5 Providing services in connection with a public hearing, mediation, or legal proceeding except where the Program Manager is party thereto. § 3.2.6 Attendance at Spatial Meetings, not included in Basic Services, at the request of the Owner. § 3.3 OPTIONAL ADDITIONAL SERVICES § 3.3.1 Providing services relative to future facilities, systems and equipment. Init. AIADxumenl e801°CMa-7892. CoDYd9h107973, 1980 end 7992 by Tna Amenranlnsaub of acnitecis.Ntn9~newep.wwttmrw:lnlawiw- Documenl is proteotetl by U.S. Copynght law antl InternaUOnal Trestles. Unauthorized reprotluction of tlislributbn of thla AIAa Document or any ponion of il, may result in severe dull antl criminal penalties, antl will be prosecutetl to the mazimum extml possible antler lha Ww. TMa tlocumeM ( wee producetl by AIA aoGWere at 11:73:55 on 0&0912009 antler Ober W.1000388752_7 which expires an 0422/2070, arM is not br resale. (7649371754) Usti Nalae: § 3.3.2 Providing services to investigate existing conditions or fadlities or to provide measured drawings thereof. § 3.3.3 Providing services to verify the accuracy of drawings or other information furnished by the Owner § 3.3.4 Providing services required for or in connectlon with the Owner's selection, procurement or installabon of furniture, furnishings and related equipment. § 3.3.5 Providing services for tenant improvements. § 3.3.6 Providing any other services not otherwise included in this Agreement § 3.3.7 Being formally appointed the LEED Project AdminisVator as defined by the United States Green Building Council. § 3.3.8 Providing services to manage the implementation of an Owner Consolidated Insurance Program (OCIP). § 3.3.9 Providing the services of a Special Inspector as required by building code. ARTICLE 4 OWNER'S RESPONSIBILITIES § 4.1 The Owner shall provide full information regarding requirements for the Project, including a program which shall set forth the Owner's objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, spedai equipment, systems, and site requirements. § 4.2 The Owner shall establish and update an overell budget for the Project based on consultation with the Program Manager, Contractor, and Archited, which shall include the Construction Cost, the Ownel's other costs and reasonable contlngendes related to all of these costs. § 4.3 If requested by the Program Manager, the Owner shall furnish evidence that finandal arrangements have been made to fulfill the Owner's obligations under this Agreement. § 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Projed. The Owner, or such authorized representative, shall render decisions in a tlmely manner pertaining to documents submitted by the Program Manager in order to avoid unreasonable delay in the orderly and sequential progress of the Program Manager's services. § 4.5 The Owner shall retain an archited whose services, dutles and responsibilities are described in the Agreement between Owner and Architect. The Owner shall retain members of the Project Team, using agreements prepared with the involvement and concurrence of the Program Manager. The Tertns and Conditions of the Agreements Between the Owner and Architect, and other members of the Project Team shall be furrAshed to the Program Manager. The Program Manager shall not be responsible for actions taken by the Architect. § 4.6 The Owner shall furnish dull engineering, commissioning, materials testing and inspections, surveying, structural, mechanical, chemical, air and water pollution tests, tests far hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. § 4.7 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any tlme for the Project, induding audldng services the Owner may require to verify the Contractors' Applications for Payment or to ascertain how or for what purposes the ConVactors have used the money paid by or on behalf of the Owner. Init. AIA Dotumsnt 8807°CMa-1982. CopyngM01973, 1880 end 1992 by TM Ameriban Ingduie N Amhllecta All ri8hb ronsrvM. WARNING: Thls AIAe Doeumenl Is profacretl by U.S. GopydgM Law and Intematbnal Treaties. Unauthorized reproduction or dkldbution of this AIA® Document, or any 3 portion of it, may result in severe civil antl criminal penalllea, and will ba prosecuted tc the maximum extent possible under the law. This dauneM ~ was produced by AIA sofmaro at 11:33:55 on OaO9/2009 under Older No.1000398152_1 which expires an 04122/2010, and is not for rosab. User lblss: (1819371754) § 4.8 The Owner shall furnish the Program Manager with a suffident quantity of Construction Documents, and access to adequate space at the Project site. The Program Manager will be providing its employees with cell phones and all other necessary computer hardware and software at its expense. § 4.9 The services, information and reports required by St9ctlons 4.5 through 4.8 shall be furnished at the Owner s expense, and the Program Manager shall be entitled to rely upon the accuracy and completeness thereof. § 4.10 Prompt wdtten notice shall be given by the Owner to the Program Manager and Project Team members if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. § 4.11 The Owner reserves the right to perform construction and operations related to the Project with the Owner's own forces, and to award contracts in connection with the Project which are not part of the Program Managers responsibilities under this Agreement. The Program Manager shall notify the Owner if any such independent actlon will interfere with the Program Manager's ability to perform the Program Manager's responsibilities under this Agreement When performing wnsWCtion or operations related to the Project, the Owner agreesto be subject to the same obligations and to have the same rights as the Contractors. § 4.12 Information or services under the Owner's control shall be fumisht5d by the Owner with reasonable promptness to avoid delay in the ordedy progress of the Program Manager s services and the progress of the Work. ARTICLE 5 CONSTRUCTION COST § 5.1 DEFINITION § 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of ail elements of the Project designed or spedfied by the Architect. § 5.1.2 The Construction Cost shall indude the cost at current market rates of labor and materials furnished by the Owner and equipment designed, spedfied, selected or spedally provided for by the Architect, plus a reasonable allowance for the Contractors' overhead and profit. In addition, a reasonable allowance for contingencies shall be inducted by market conditions at the time of bidding and for changes in the Work during construction. Construction Cost shall not indude the compensation of the Program Manager and Program Manager's consultants. § 5.1.3 Construction Cost does not indude the compensation of the Architect and Architect's consultants, and the Owners other consultants costs of the land, rights-of-way, finandng or other costs which are the responsibility of the Owner as provided in Artide 4. If any portion of the Program Managers twmpensatlon is based upon a percentage of Construction Cost, then Construction Cost, for the purpose of determining such portion, shall not indude the compensation of the Program Manager or Program Managers consultants. § 5.2 RESPONSIBILITY FOR CONSTRUCTION COST § 5.2.1 Evaluations of the Owners Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Contractor represent the Program Managers best judgment as a person or entity familiar with the construction industry. It is recognized, however, that neither the Program Manager, nor the Owner, nor any other member of the Project Team has control over the cost of labor, matedals or equipment, over Contractors' methods of determining bid prices, or over tbmpetltive bidding, market or negofiating conditons. Accordingly, the Program Manager cannot and does not warrant or represent that bids or negotiated prices will not vary from the Project budget proposed, established or approved by the Owner, or from any cost estimate or evaluation prepared by the Contractor. § 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget unless such fixed limit has been agreed upon in writlng and signed by the parties hereto. If such a fixed limit has been established, the Project Team shall lntL AIA DOCUmMP aB01^CNe-1994. CopydgM 01973, 1900 and 199T by The Amerlan IM9tule of Architect!. All riphte rotbrved. WARNING: Thie AU® 4 Document Is roteeted b U.S. Copydght Law and International Trestles. UnauNOrized reproduction or dlatdbution of this AIA® Document, or any portion of it, may reeult in severe civil and cdminal penaltiac, antl will be prosecuteU to iha mazimum extant poetlble under the law. TMs dxumeM ~ was produced by AIA ao5ware et 11:33:55 on 09/09/E009 under Order No.1000398152_t whkh exdres on 04/2YI2010. and is net for resale. User Note: (1540371754) be permitted to indude contingencies for design, bidding and price escalation, and shall collaborate internally to determine what materials, equipment, rxxnponent systems and types of construction are to be inducted in the Contract Documents, to suggest reasonable adjustments in the scope of the Project, and to suggest indusion of alternate bids in the Construction Documents to adjust the Construction Cost to the fixed limit. Fixed limit of Construction Cost shall be established through the Preconstruction Services process and Mall not be increased after the passage of the bond issue by the voters on the ballot in November of 2010. (Paragraph deleted) § 5.2.41f a fixed limit of Construction Cost is exceeded by the Contractors GMP estimate of Construction Cost for the Project, the Owner may, at its sole discretion: .1 give written approval of an increase in such fixed limit; .2 authorize rebidding or renegoliafing of the Project within a reasonable time; .3 if the Project is abandoned, terminate immediately in accordance with Section 9.6; or 4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. § 5.2.5 If the Owner chooses to proceed under Section 5.2.4.4, the Program Manager, without additlonai charge, shall cooperate with the Owner and Project Team as necessary to bring the Construction Cost within the fixed limit, if established as a condition of this Agreement. ARTICLE 6 CONSTRUCTION SUPPORT ACTIVRIES § 6.1 Construction support activities, defined as services made necessary to manage more than three (3) prime Contractors on a single site in lieu of a single general contractor, when requested in writing by the Owner to fadlitate the construction of the Project, if provided by the Program Manager, shall be Additional Services to the Agreement or governed by separate contractual agreements, as mutually agreed. § 6.2 Reimbursable expenses listed in Artide 14 for construction support activities maybe subject to trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment which shall accrue to the Owner, and the Program Manager shall make provisions so that they can be secured. ARTICLE 7 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS § 7.1 The Drawings, Spedficetlons and other documents prepared by the Architect are Instruments of Service through which the Work to be executed by the Contractors is described. The Owner is the copyright owner of the Instruments of Service. The Program Manager may retain one record set. The Program Manager shall not own or daim a copyright in the Drawings, Spedficefions and other documents. The Drawings, Spedficatlons and other documents prepared by the Architect are owned by the Owner, and copies thereof furnished to the Program Manager, are for use solely with respect to this Project. They are not to be used by the Program Manager on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner. The Program Manager is granted a limited license to use and reproduce applicable portions of the Drawings, Specificetlons and other documents prepared by the Architect appropriate to and for use in the performance of the Program Manager's services under this Agreement. All copies made under this license shall bear the statutory copyright notice, if any, shown on the Drawings, Spedflcetlons and other documents. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Owners copyright or other reserved rights. Ina. AIA Deeumenl 8801°CMa-t992. Copyd9M 4J 1973, 7980 entl 7992 Dy The AmMCan baltllut0 orAmhllecls. All ABhb roaarvsd. WARNING: This AIA® Document is protected by LL5. CopYd9ht Law and lntamatbnal Troatlas. Unauthorked reproduction or distribution of this AIA° Document, or any rJ portion of it. may reaWt in severo eWil and criminal penalties, and will be prosecuted to the maximum eatant poseibia unoar lM law. TNe documam i wss produced by AIA so8waro e[ 11:33:33 on 09r09/2009 under Order No.7000398152_1 whkh exdras on 84@2/2070, and is not br resale. User Nolen: (1949371754) § 7.2 Ownership of Documents. All drawings, speafigtlons, data, studies, surveys, maps, models, photogrephs, reports or other documents or matedal, whether In digital electronic format or paper copy, whether finished or unfinished, prepared by Program Manager for the Owner on this Project are Instruments of Service. The Owner shall be permitted to retain copies, including electronic and reproducible copies, of the Instruments of Service and other documents produced by the Program Manager in connection with the Project. The Owner shall be permitted to use such Instruments of Service on this Protect, but the Owner agrees not to use the Instruments of Service on other projects, and the rights, title and interest in the Instruments of Service are specifically retained by the Program Manager. § 7.3 Terminatlon. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Program Manager pursuant to this Agreement shall belong to the Owner for its purposes as it deems necessary on this protect. ARTICLE 8 DISPUTE RESOLUTION (Paragraph deleted) § 8.1 Both parties agree to non-binding mediation as a condition precedent to litigatlon to resolve any contractual dispute by submittlng the dispute to a mutually agreeable mediation group. Mediaton will take place in Aspen, Colorado, using one mutually acceptable mediator. If Owner and Program Manager are unable to agree, a mediator will be chosen by each and those two mediators will select one mediator to conduct the mediation. If mediation fails, the jurisdiction and venue of any suit to enforce the terms of this Agreement shall lie in Pitkin County, Colorado, each party shall bear its own respective cost, expenses and attorney fees unless otherwise agreed. (Paragraphs deleted) ARTICLE 9 TERMINATION, SUSPENSION OR ABANDONMENT § 9.1 TMs Agreement maybe terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the parry initiating the termination. The non-performing party shall be given written notice specifying the nonperformance and shall be given seven days to begin to cure said nonperformance, and continue to cure said nonperformance, as a conditon precedent to termination. In the event of termination for any reason not the fault of the Program Manager, the Program Manager shall be compensated for services performed pror to notice of termination, and associated Reimbursable Expenses then due. If a termination by the Owner is subsequently determined to be wrongful, such termination shall automatically be converted to a termination for the Owner's convenience. § 9.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Program Manager shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Program Manager's compensation shall be equitably adjusted to provide for expenses incurred in the Intertuption and resumption of the Program Managers services. § 8.3 This Agreement may be terminated by the Owner upon not less than seven days written notice to the Program Manager in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutve days, the Program Manager may terminate this Agreement by giving written notice. § 9.4 Failure of ttte Owner to make payments to the Program Manager of undisputed amounts properly due in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. § 9.51f the Owner fails to make payment of undisputed amounts when properly due the Program Manager for services and expenses, the Program Manager may, upon seven days' written nodce to the Owner, suspend performance of services under this Agreement Unless payment in full is received by the Program Manager within seven days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the Program Manager shall have no liability to the Owner for delay or damage caused to the Owner because of such suspension of services. Init. AIA Document a601 °CMe ~ 1992. Copyright ®1973, 1850 orb 1892 by The AmeACen Imbtltub or gmhltecte. MI ryhb marvaD. WARNING Thls AIA° Document is protected by U.S. Copyright Law a,M Intemalional Treaties. Unauthorized raproeuction or Distribution oilhis AIA® Oocumen6 or any 5 portion of it, may result In swore civil and criminal penalties, antl will be prosaculeD to the maximum extent possible antler the law. This DacumeM ( was proeueetl by AU eollware et 11:33:53 on 09/09!2009 uMer Ober No.1000398132_1 wNCh explrea on 00/22/2010, enD Is Irot fa resale. User NOW: (1909371754) § 9.6 The Owner may terminate this Agreement for the Owner's sole convenience, for any reason or no reason. In the evert of termination by the Owner for any reason not the fault of the Program Manager, the Program Manager shall be compensated for services performed prior to notice of terminaton, and associated Reimbursable F~cpenses then due. § 9.8.1 Notwithstanding the above, in the event the voters in the City of Aspen do not approve the bond question anticipated to be on the ballot November 2010, this Agreement may be terminated for the Owner's convenience and no subsequent Suspension or Termination F~cpenses or fees will be due or will accrue from the Owner to the Program Manager. § 9.7 The Owner reserves the right to reduce the scope of the Project for its convenience, in which event the Program Manager's compensation shall be equitably adjusted. ARTICLE 10 MISCELLANEOUS PROVISIONS § 10.1 Unless otherwise provided, this Agreement shall be governed by the law of the place where the Project is located. § 10.2 Terms in this Agreement shall have the same meaning as those in the modified edition of AIA Document A29S2008, General Conditions of the Contract for Integrated Project Delivery, incorporated herein. § 10.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued based on the applicable statutes of limitations in force at the date of signing of this Agreement. § 10.4 Waivers of Subrogation. The Owner and Program Manager waive ail rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance purchased for fhe Project during construction, except such rights as they may have to the proceeds of such insurance as set forth in the modified edition of AIA Document A295-2008, General Conditions of the Contract for Integrated Project Delivery. The Owner and Program Manager each shall require similar waivers from their ConVactors, Architect, consultants, agents, and persons or entities awarded separate contracts administered under the Owner's own forces. § 10.5 The Owner and Program Manager, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Program Manager shall Vansfer or assign this Agreement without the written consent of the other. Sub-Contracting, if authorized, shall not relieve the Program Manager of any of the responsibilities or obligations under this agreement. Program Manager shall be and remain solely responsible to the Owner for Ure acts, errors, omissions or neglect of any subcontractors, officers, agents and employees, each of whom shall, for this purpose be deemed to bean agent or employee of the Program Manager tD the extent d the subcontract. The Owner shall not be obligated to pay or be liable for payment of any sums due which maybe due to any sub-conVactor. § 10.6 TMs Agreement represents the entire and integrated agreement between the Owner and Program Manager and supersedes all prior nt3gotlations, representations oragreements, either written or oral. This Agreement may be amended only by written instrument signed by bath Owner and Program Manager. § 10.7 Nothing contained in this Agreement shall create a contractual rela0onship with or a cause of action in favor of a third party against either the Owner or Program Manager. § 10.7.1 This agreement has been created jointly and ambiguity cannot be construed against either party. § 10.8 Unless otherwise provided in this Agreement, the Program Manager and the Program Manager's consultants shall have no responsibility for the discovery, presence, handling, rtsmoval or disposal of or IM7 AIA Document BBO71eCMa-1994. Copyright®1973, 1990 art 1992 by TM Amerkan IreOlum of AmhiteMS. All dghb roeervad. W ARNING: Thh AlA'" Document le protxted by U.S. Lopydght Law and International Treaties. Unauthorized reproduetl°n or dhtribution of this AIA° Document, or any portion of it, may result in severe civil and criminal penalliee, and will be prosecuted to the maximum extent possible under the law. This dom,nem / was pmdwad by AIA software x111:33:55 on 09'0&2009 under Omer No.1000399152_t whbh expires an Oaf22/2010, and is rrot for resale. User Netse: (t6e9371754) exposure of persons to hazardous materials in any form at the Project site, induding but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. § 10.9 The Program Manager shall have the right to discuss the project, and the Program Manager's irnoivement in the project, with current, future or prospective dients, and/or in Its promotlonal material. § 10.10 No construction is permitted on Sundays, during the Food and Wine Fesfival in June (Friday through Sunday), Memorial Day weekend, 4th of July day and/or weekend if it falls on a Friday or Monday, Labar Day weekend, Thanksgiving day, and Christmas week (12/25 -1/1). § 10.11 Tax-Exemption. All purchases of supplies, construction or building materials shall not indude Federal Fxdse Taxes or Cdorado State or local sales or use taxes. The Owner's State of Cdoredo tax idenfifica8on number is 98-04557. The Owner's Federel Tax Identification Number is 84-8000563. § 10.12 Covenant Against Contingent Fees. The Program Manager warrants that slhe has not employed or retained any company or person, other than a bona fide employee working for the Program Manager, to salidt or secure this conVact, that sfhe 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. § 10.13 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. Program Manager shall be, and shall perform as, an Independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the Owner, No agent, employee, or servant of Program Manager shall be, or shall be deemed to be, the employee, agent or servant of the Owner. Owner is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole conVOl of Program Manager. None of the benefits provided by Owner to its employees induding, but not limited to, workers' compensation insurance and unemployment Insurance, are available from Owner to the employees, agents or servants of Program Manager. Program Manager shall be solely and entirely responsible for its acts and for the acts of Program Manager's agents, employees, servants and subcontractors during the performance of this contract. Program Manager shall indemnify Owner against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed ar required under unemployment insurance, sodas security and income tax law, with respect to Program Manager andlor Program Manager's employees engaged in the performance of the services agreed to herein. § 10.141ndemnity: § 10.14.1 Indemnification of the Owner. Program Manager agrees to indemnify and hold harmless the Owner, its officers, employees, insurers, and self-insurance pool (the "Owner Indemnitees"), from and against all liability, daims, and demands, on account of injury, loss, or damage, induding without limitatlon daims arising from bodily injury, personal injury, sickness, disease, death, property loss or property damage, ar any other loss of any kind whatsoever, including all attorneys' fees and costs, which adsa out d or are in any manner connected with this contract, bu[ only to the extent that such injury, loss, or damage is caused in whale or in part by the acts, omissions, ertors, professional errors, mistake, negligence, or other fault of the Program Manager, any subcontractor of the Program Manager, or any officer, employee, representative, or agent of the Program Manager, or which arises out of any Worker's Compensatlon daim of any employee of the Program Manager w of any employee of any subwnVactor of the Program Manager. The Program Manager shall reimburse the Owner for the defense costs, induding attorneys' fees, incurred by the Owner in connec8on with any such liability, claims, ar demands if it Is determined that such injury, loss, or damage was caused in whole or in part by the acts, omissions, or other fault of the Program Manager, its officers, or its employees or anyone for whom it is liable. In stub event, the Program Manager shall reimburse the Owner for that portion of any Judgment, damages or loss, induding attorneys' fees and costs, attributable to such acts, omissions, or other fault of the Program Manager, its officers, or employees, or anyone for whom it is liable. § 10.14.2 To the extent permitted by applicable law, the Owner In Its Agreements with the respective Imit AIA Document Blot°CMa ~ 1992. Copyright ®7973, 1980 and 1992 Dy The Ametlean Institute o(AfphiteCN. All tlghee rseervetl. WARNING: This AIA® Document is protected by U.S. Copyright Law arM International Treaties. Unauthorizetl reprotluetion or tlislrlbulion of this A1Ae Doeumenq or any 6 portion of It. may result in severe civil and criminal panal0ea, and will bs presecuted to the maximum extant possible antler the law. This tlopunent ~ wore pmtlucetl by AIA solware at 11:33:55 on 09/09@009 uMer Onbr No.1000388152_1 whkh expires on OdlYt/2010, eM ie rql (or resale. User Netee: (1849311 ]Sd) Project Team members shall cause the Project Team members to indemnify and hold the Program Manager harmless from and against all daims, demands, suits, adions, payments, judgments, loss, damage, liability, cost and expense (including attorneys' fees) arising out of injury (including death) to any person or damage to any property but only to the extent caused by the respective Projed Team member's intentional acts, negligence, or gross negligence. In such event, the Project Team members shall reimburse the Owner and the Program Manager for that portion of any judgment, damages or loss, induding attomeys' fees and costs, attributable to such acts, omissions, or other fault of the Projed Team member, its officers, or employees, or anyone for whom it is liable. § 10.14.3 Nothing in this Agreement is intended to broaden, expand, limit or change in any way the damages for which the Owner or the Program Manager may or may not be liable to their employees under their current worker's compensation and benefit plans. § 10.15 Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking f)f the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the Projed not expressly incorporated in this writing. § 10.16 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 requested, or in accordance with Section 12.2 of A295 - 2008 General Conditions, to: Owner. Program Conshuction Manager. City Manager Richard Pfannenstiel, Pdndpal City of Aspen Pfocus, lLC 130 South Galena Street 1425 North 1st Street, Suite 100 Aspen, Colorado 81811 Phoenix, Adzona 85004 § 10.17 Non-Discrimination. No discrimination because of race, color, creed, sex, madtal status, afft3dional or sexual odentatlon, family responsibility, national origin, ancestry, handicap, or religion shall ba made in the employment of persons to perform services under this contract. Program Manager agrees to meet all of the requirements of Owner's municipal code, Section 13-98, pertaining to non- discriminadon in employment. § 10.18 Waiver. The waiver by the Owner of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other tens. No term, covenant, or condition of this Agreement can be waived except by the written consent of the Owner. Forbearance or indulgence by the Owner in any regard whatsoever shall not constitute a waiver of any tens, covenant, or condition to be performed by Program Manager to which the same may apply and, until complete performance by Program Manager of said tens, covenant or condition, the Owner shall be entided to invoke any remedy available to it under this Agreement or bylaw despite any such forbearance or indulgence. § 10.19 Execution of Agreement by Owner. This agreement shall be binding upon all parties hereto and their respedive heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrery contained herein, this Agreement in excess bf twenty-five thousand dollars ($25,000.00) shall not be binding upon the Owner unless duly executed by the Mayor of the City of Aspen, or a duly authorized oifldal in his absence, fdlowing City Coundl approval. § 10.20 Illegal Allena -CRS 6-17.5-101 & 24-76.5-101 (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 08-1023 that added new statutes relating to the employment of and contrading with illegal aliens. These new laws prohibit all state agendas and political subdivisions, including the Owner, from knowingly hiring an illegal alien to perform work under a contrad, or to knowingly contred with a subcontractor who 1n1t AU a«YmeM 8807°CMe-1982 CapydgM®1879, 1800 and 1892 byTM Amancan InatHUlo of An:Mtau79. All dBMe rewrved. WARNING: This AIA' Document la protected by 0.S. Copydght Law and Inlarnational Treaties. Unauthorized reproduction or distdbutbn of thin AIA° 0oeument, or any portion of il, may result in severe civil and criminal penalties, and will be proeacuted to Ne maximum extent ponlble untlar tM law. This document f wee proouced by AIA Software 8111:33:50 on 00 /0 912 0 0 9 uMar Ober No.1000998152_1 wNCh expires on Dd122/2070, aM Is not for reseb. Uesr NOta: (ifi99371754) knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services indude certain spedflc language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) 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 Owner. "E-verify program" means the elt9cVOnic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subconVactor not involving the delivery of a spl3ciflc end product other than reports that are merely inddental to the required performance. (c) ey signing this document, Program Manager certifies and represents that at this time: (i) Program Manager shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and (ii) Program Manager has participated or attempted to partidpate in either the e-verify program or the department program in order to verify that new employees are not illegal aliens. (d) Program Manager hereby confirms that: (i) Program Manager shall not knowingly employ or contract with an illegal alien to perform work under the Public ConVact for Services. (ii) Program Manager shall not enter into a contract with a subcontractor that fails to certify to the Program Manager that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (iii)_ Program Manager has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through partidpation in either the e-verify program or the department program. (iv) Program Manager shall not use the either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public ConVactfor Services is being performed. (v) If Program Manager obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Program Manager shall: (1) Notify such subcontractor and the Owner within three days that Program Manager has actual knowledge that the sub~ntractor is employing or AIA Doeumal Be01 °CMa-1993. Copyright®1973, 1980 aM 1992 by The Ameacen batiture ofArchitects. All fights rossrvW. WARNING: This AIAe IDit. Document Is protected by U.S. Copyright Law and International Treaties. Unauthorixetl reproducUOn or dlstributbn of this AIAe Document, or any ft) portbn of x, may result in sevaro civil and erbnlnal penaltlea, and will be proaecutetl to the maximum arent possible under the law. TMs Document ) wa produeetl by AIA 6o8ware at 11:33:55 an 09/08/2009 antler Ober No.1000398152 1 wMeh aspires on ONIII2010. antl is not for roaela. Uar Nola: (18d937175A) subcontracting with an illegal alien; and (2) Terminate the subcontract with the subcontredor if within three days of receiving the notice required pursuant to this section the subcontractor does not stop employing or contreding with the illegal alien; except that Program Manager shall not terminate the Public Contract for Services with the subcontrector if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Program Manager shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an irnestigafion that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authortty established in Subsecton 8-17.5-102 (5), C.R.S. (vii) If Program Manager violates any provision of the Public Contrect for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may terminate this Agreement. If this Agreement (s so terminated, Program Manager shall be liable for actual and consequential damages to the Owner arising out of Program Manager's violation of Subsection 8-17.5-102, C.R.S. § 10.22 General Terns. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, dtanged, 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. ARTICLE 11 INSURANCE § 11.1 PROGRAM MANAGER'S LIABILITY INSURANCE §11.1.1 Program Managerslnsurance (a) Program Manager agrees to procure and maintain, at its own expense, a policy or policies of insurance suffident to insure against all liability, daims, demands, and other obligations assumed by the Program Manager pursuant io the indemnificatlon provision. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Program Manager shall rat be relieved of any liability, claims, demands, or other obligations assumed pursuant to its indemnification obligatlon by reason of its failure to procure or maintain insurence, or by reason of its failure to procure or maintain insurance in suffident amounts, duration, or types. (b) Program Manager shall procure and maintain, and shall cause any subconVactor of the Program Manager to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the Owner. All coverages shall be corlGnuously maintained to cover all liability, claims, demands, and other obligations assumed by the Program Manager pursuant to the indemnity obligatons. In the case of any daimsillade policy, the necessary retroactive dates and extended reporting pedods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurence to cover obligations imposed by applicable Colorado laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND AIA Doeummt 9101 °CYa~ 1992. Copyrl9M®1973. 1980 and 1982 by The Amedran Instlarte of Aroheects. All rlphb reserved. WARNING: Thin AIA® Imlt. Document le protected by U.9. Copyright Law and Inbrnetionat Treaties. Unauthorized reproduetlon or distdbutlon ofihh AIAa Documanq or any 11 podion oI N, may result In aware clvN and etlminal penalties, and will be prosecuted to the maximum extent possible underlM law. This Document 7 was produced by AIA software al 11:33:55 on 0910 9 /2 0 0 9 under Order No.1000398152_t which exdres on 06/2212010, end is rwt for resale. Uqr Notes: (1849371754) DOLLARS ($500,000.00) disease -policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. The policy shall contain a waiver of subrogation in favor of the Owner. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policyshall be applicable to all premises and operations. The policy shall indude coverage for bodily injury, broad form property damage (including completed operations), personal injury (induding coverage for contractual and employee acts), blanket contractual, Independent contractors, products, and completed operations. The policy shall contain a severebility of interests provision and a waiver of subrogation in favor of the Owner. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each orcurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Program Managers owned, hired and non-owned vehides assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the Owner. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The General liability and automobile liability policies required in Sections 11.1.1.ii and 11.1.1.iii above shall be endorsed to indude the Owner and the Owners officers and employees as additonai insureds. Every policy required above shall be primary insurance, and any insurance carried by the Owner, its officers or employees, or carried by or provided through any Insurance pool of the Owner, shall be excess and not contributory insurance to that provided by Program Manager. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage adsing from completed operetons. The Program Manager shall be solely responsible for any deductible losses under any policy required above. (d) The Program Manager shall submit Certificates of Insurance confirming the required insurance coverages prior to commencement of the Work. The Certificate of Insurance provided by the Program Manager shall be completed by the Program Managers insurance agent as evidence that polities providing the required coverages, conditlons, and minimum limits are in full force and effect, and shall be reviewed and approved by the Owner prior to commencement of fhe contract, and shall be in a mutually acceptable ACCORD forth. The certificate shall identify this contract and shall provide that the coverages afforded under the polities shall not be canceled, terminated or matedally changed until at least thirty (30) days prior wdtten notlce has been given to the Owner. (e) Failure on the part of the Program Manager to procure or maintain policies providing the required covareges, conditlons, and minimum limits shall constitute a material breach of contract upon which Owner may immediately terminate this contract, or at its discretion Owner may procure or renew any such policy or any extended reporting pedod thereto and may pay any and all premiums in connt3ctlon therewith, and all monies so paid by Owner shall be repaid by Program Manager to Owner upon demand, or Owner may offset the cost of the premiums against monies due to Program Manager from Owner. (f) Owner reserves the right to request and receive a certlfied copy of any policy and any endorsement thereto. § 11.2 The parties hereto understand and agree that Owner is relying on, and does not waive or intend to AIA Document 8891 °CMe -1882. DoDYrlpht01973. 1990 slid 1992 M The American IrI8liWte of fuchltacta. All rl9hte roeervad. WARNING; Thls AIA° IDIt. Document (s protected ay U.B. Copyright Law and Intema0onel Trestles. UnautMrtzad reproduction or dialrlbutbn of this AIA° Gxument, or any 12 portion of k, may reauH in cevere civil and cAminal panaltlea, and will M prosecuted to the maximum extent posalON under the law. TNS document / was protluced Oy AIA so8waro at 11:33:55 on 09/09/2009 under Order W.1000399157 1 which expires on ON22/2010, and is rat for resale. Uesr NOtN: (1649371756) 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 protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 er seq., C.R.S., as from time to time amended, or otherwise available to Owner, its officers, or its employees. §11.3 Owner's Insurance. The partles hereto understand that the Owner is a member of the Cdorado Intergovernmental Risk Sharing Agency (CIRSA) and as such partidpates in the CIRSA Property/Casualty Pcol. Copies of the CIRSA palides and manual are kept at the City d Aspen Finance Department and are available to Program Manager for inspection during normal business hours. Owner makes no representaflons whatsoever with respect to speafic coverages offered by CIRSA. Owner shall provide Program Manager reasonable noflce of any changes in its membership or participation in CIRSA. ARTICLE 12 PAYMENTS TO THE PROGRAM MANAGER (Paragraphs deleted) § 12.1 PERSONNEL EXPENSE § 12.1.1 Personnel Expense are limited to the hourly rates reflected on Exhibit B -Hourly Rates. § 12.2 REIMBURSABLE EXPENSES § 12.2.1 Reimbursable Expense are in additlon to compensation for Basic and Additional Services and include expenses incurred by the Program Manager and Program Manager's employees and consultants in the interest of the Project, as identified in the following Clauses. § 12.2.1.1 Expense of transportation authorized in connection with the Project, expenses in connection with authorized outof-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction aver the Project. § 12.2.1.2 Expense of reproductions, postage, express deliveries, elecVonic facsimile transmissions and handling of Drawings, SpecificaUOns and other documents, but only when such documents are needed from the Program Manager for the Owner's construction procurement process. The Owner and Project Team will furnish the Program Manager with six (8) complete sets of documents for each project at no charge. The Program Manager has inducted other costs d this type in Its Fees. § 12.2.1.3 If requested and authorized in advance by the Owner, expense of overtime work requiring higher than regular rates for non-ex~npt employees, only. Salaried and exempt employees shall not charge overtime rates, or for hours worked in excess of 40 hours per week. § 12.2.1.4 Expense of additional insurance coverage or limits requested by the Owner in excess of that spedfled in this Agreement. § 12.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES § 12.3.1 An initlal payment as set forth in Section 13.1 is the minimum payment under this Agreement. § 12.3.2 Subsequent payments for Basic Services shall be made monthly and, where applicable, shall be in proportlon to services performed within each phase of service, on the basis set forth in Section 13.2.1. (Paragraphs deleted) § 12.4 PAYMENTS ON ACCOUNT OF ADDRIONAL SERVICES AND REIMBURSABLE EXPENSES § 12.4.1 Payments on account of the Program Manager's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Program Manager's statement of services rendered or expensesincurced. § 12.5 PAYMENTS WITHHELD § 12.5.1 No deductions shall be made from the Program Managers compensation on account of penalty, liquidated damages or other sums withheld from payments to Contractors, or on account of the cost of changes in Work other than those for which the Program Manager has been adjudicated as liable for or agreed to in wdting. tail. AlA aecYTMf ax0[°aMe~19g2. COpyrlght01973, 1980 aM 7992 by The Amerkaninetkuteo(Ylmhttacts. All dgMa rosarvad. WARNING: This AlA® aacument is protected by U.S. Copyright Law and Intemmtionai Trestles. Unauthorized reproduction or disfabutlon or this AIAe oocumenQ or any 13 portion or iq may roeug in severe civN and criminal penalties, and wilt be prosecutetl to the maximum extern possible under the Ww. TNS document r was protluced by AIA software x111:33:55 on 09109/2009 Under Ober No.1000396152_t which expires on 04/12/2010, and is nd for resale. User aetp: (1849371754) § 12.6PROGRAM MANAGER'S ACCOUNTING RECORDS (Paragraph deleted) § 12.6.1 Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed an the basis of a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually corwenient Imes. ARTICLE 13 BASIS OF COMPENSATION The Owner shall compensate the Program Manager as follows: § 13.1 AN INITIAL PAYMENT of Zero ($ [Oj )shall be made upon execution of this Agreement and credited to the owner's account at final payment. § 13.2 BASIC COMPENSATION § 13.2.1 FOR BASIC SERVICES, as described in ANde 2, and any other services induded in ANde 14 as part of Basic Services, Basic Compensation shall be computed as follows: For Pre-ConsWctlon Phase Services: (Paragraph deleted) Payment will be made on the basis of a total fixed fee of $259,726 through the approval by Owner of the GMP, which shall be paid as follows: Conceptualization Phase: $ 75,686 Design Phase: $184,040 For Construction Phase Services: (Paragraph deleted) Construction Phase Services will be negotiated and added to the Agreement by Amendment at a later time, if required. § 13.3 COMPENSATION FOR ADDRIONAL SERVICES AND SPECIAL MEETING ALLOWANCE § 13.3.1 FOR ADDITIONAL SERVICES OF THE PROGRAM MANAGER, as described in ANde 3, and any other services induded in ANde 14 as Additional Services, compensation shall be computed as fellows: (Paragraphs deleted) Additional Services will be paid for at the houdy rates listed in Exhibit B, which is incorporated herein by reference. Spedal Meetings will be paid for, when requested by the Owner, based on the houdy rates listed in Exhibit B up to the Spedal Meeting Allowance of $9,600 for both Conceptualization and Design Phases. T § 13.4 REIMBURSABLE EXPENSES § 13.4.1 FOR REIMBURSABLE EXPENSES, as described in Section 12.2, and any other items induded in ANde 14 as Reimbursable Expenses, a multiple of one and ten hundredths ( 1.10 )times the expenses incurred by the Program Manager and the Program Manager's employees and consultants in the interest of the Project. Reimbursable expenses for Basic Services will be paid on the basis of actual costs, not to exceed the following amounts: r v°""`" Conceptualization Phase $ 5,540 - _ Design Phase $22,505 Reimbursable expenses for the Spedal Meeting Allowance are based on actual costs up to $5,380 for Conceptualization and Design Phases. 4tlf. AIA Documard 8887 °DMa ~ 7982. Copydgnt® 1973, 7980 antl 198E oy The Amenoan ha0lute of Arohltxla. All ri9hb mervetl. WARNIND: Thla AIA® Document la protected by U.9. Copydpht Law and Intematfonal Trestles. Unaulhodzetl nproduetlon ordialrlbutlon or this AIA Document or any 14 portion of it may resux In severe civil antl erfminal penalties, antl will be Drosecuted to the maximum aztent poeelbb under the law. TNS document / was protluratl by AIA software al 11:33'.55 an 09109/2009 under Ordx No.1000398132_1 wtYCh expires on OU2N2010, antl is not for resab. Ilea Noln: (1849371754) § 13.5 ADDITIONAL PROVISIONS § 13.5.1 IF THE BASIC SERVICES covered by this Agreement have not been completed within Thirty ( 30 )days after approval of the Guaranteed Maximum Pdce proposal, through no fault of the Program Manager, extension of the Program Manager's services beyond that time shall be equitably adjusted. § 13.5.2 Payments are due and payable thirty ( 30 )days from the date of the Program Managers invoice. Amounts unpaid forty-five ( 45 )days after the invoce date shall bear interest at the rate entered below. 8% compounded annually § 13.5.3 The hourly rates set forth for Additional Services in 5chibit B - Houdy Rates shall be annually adjusted in accordance with normal salary review practlces and increases in overhead of the Progrm Manager and will not exceed once per year, or represent more than a 2a/e increase in any single year. ARTICLE 14 OTHER CONDITIONS OR SERVICES § 14.1 The Owner shall endeavor to communicate with the Project Team through the Program Manager, or to copy the Program Manager on all communications, except in an emergency endangedng I'rfe or property, in order to maintain dear and coordinated communications between the Program Manager, Architect, Confractor, and the Owner. § 14.2 If the Program Manager wishes to make a daim for an Increase in its Fee, or an extension in the date for Completion of Basic Services, he shall give the Owner written notice thereof within twenty (20) days after the occurcence of the event giving dse to such daim. This notice shall be given by the Program Manager before proceeding to execute any Work. Gaims adsing from delay shall be made within a reasonable time after the delay. § 15.1 LIMITS ON INSURANCE Type ofinsurence See Section 11.1 Above. Limit of liability See Section 11.1 Above. This Agreement entered into as of the day and year first written above. OWNER PROGRAM MANAGER City of Aspen Pfocus, LLC Sign ure) (ignatu ) ~ t'?~' j't:2+; t1e_ t C~}y ~-.~ Richard Pfannenstiel, Pdndpal (A d By: IRIt. AIA DOwment 8007°GMa. t902. capydpM®1973, 1900aM t992 OYTha Amerlwninstauto orArohi[ecte. All rlyhls ressrvW. WARNING: This AIA° Document 4 protactetl by LL0. Copydght law and International Treaties. Unauthorized reprotlu<tion ordisldbution of Chia AIA® Oocumenp or any 15 podbn or b, may result In severe clvll antl ctlminal panalttes, antl will ba prosecuted to the maximum artent poaalble under the law. This document ~ was produced by AIA so0ware al 17:33:55 on 09!09@009 wMer OMer No.1000398152 1 wMCh expires on 04!22/2010, eM la not br resale. UNr Note: (1849371754) EXHIBIT "A" -SCOPE OF SERVICES PROGRAM MANAGER CITY OF ASPEN WHEELER OPERA HOUSE 21sT CENTURY MASTER PLAN PROJECT OVERVIEW Project Description: The scope of work is for the Program Manager services relative to the Wheeler Opera House 21 s' Century Master Plan. This Project consists of a proposed expansion to the historic performing arts venue originally constructed in 1889. The nearly 30,000 squaze feet addition plans to feature a 275 sea[ theater, multi-purpose room, lobbies, box office, administrative offices, dressing rooms, loading dock, along with a complement offront-of--house patron amenities and back-of--house support spaces. A Total Project Budget is projected as $30 million, which includes Construction and Non-Construction Costs. Project Team: For this scope of services, the Project Team includes the "Owner", which includes the City of Aspen (COA) aad Wheeler Opera House (WOH) representatives, the "Architect", Fazewell Mills Gatsch Architects, LLC (FMGA), the "Program Manager", Pfocus, LLC, the selected "Contractor", the selected "Commissioning Agent" and additional stakeholders selected to participate in an advisory capacity during the development of the Project (such as user group and technical representatives). Project Duration: The Owner's key schedule milestone for the Program Manager scope of services is completion of the Contractor's Guaranteed Maximum Price (GMP) Proposal by 15 August 2010 for the Wheeler Opera House 21s' Century Master Plan. Based on the current status of the Project and the Integrated Project Delivery Method, this goal requires completion of the Conceptualization, Criteria Design, and Detailed Design Phases. PROGRAM MANAGEMENT SCOPE OF SERVICES 1. CONCEPTUALIZATION PHASE (Project Start-Up and Concept Documents) 1.1 General Requirements 1.1.1 Management and Leadership: Provide Project Team leadership to coordinate, facilitate, and manage the Team's endeavors to deliver the Project Start-Up and Program Review phase consistent with the Project goals. Assist with critical decision-making for the Project including decisions pertaining to the overall project approach. Provide Project Management staff to deliver these services to support the assignment for [he duration of this Project. 1.1.2 Conceptualization Phase Duration: Conceptualization Phase services are for a period of approximately twelve weeks. These services commence as of 15 September 2009. 1.1.3 Special Meetings: Attend City Council, Historic Preservation Commission, and Planning & Zoning Department meetings that have project issues on the agenda. The Special Meeting Allowance anticipates a total of three meetings during this phase. Wheeler Opera House 21"Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page I of 6 1.1.4 Management Team Meetings: Participate in bi-monthly telephone conferences with Owner and Architect to discuss the overall progress of the project. Maintain Project Status Report including action items for follow up. 1.2 Project Start-Up 1.2.1 Information Review: Receive and review information pertaining [o the Project in a timely manner. 1.2.2 Project Start-up Meeting: Schedule and facilitate Project Stazt-Up Meeting with Owner to understand preliminary scope and define additional stakeholders, individual roles and responsibilities, approval process, project procedures and governance, schedule and budget. Prepare and distribute meetings notes. 1.2.3 Architect Contract Negotiation: Assist Ownet with the contract negotiation for the Architect and subconsultant team. 1.2.4 Contractor Selection Process: Assist Owner with the solicitation, evaluation and selection of a qualified Contractor through a City of Aspen Request For Qualification (RFQ)/Request For Proposal (RFP) process. Provide a preliminary scope of services and preliminary project schedule for inclusion into the Request for Qualification (RFQ). Identify Contractors to notify. Review and rank Statements of Qualification and Proposal received and participate in interviews of short listed firms. The Contractor will serve as the prime constructor, and to the extent necessary, assemble a team of trade subcontractors. 1.2.5 Contractor Contract Negotiation: Assist Owner with the contract negotiation for the Contractor. 1.2.6 Commissioning Agent Selection Process: Assist Owner with the solicitation, evaluation and selection of a qualified Commissioning Agent through a City of Aspen Request For Qualification (RFQ) process. Identify Commissioning Agents to notify. Review and rank Statements of Qualification received and participate in interviews of short listed firms. 1.2.7 Commissioning Agent Contract Negotiation: Assist Owner with the contract negotiation for the Commissioning Agent. 1.2.8 Project Directory: Prepare a written directory of Project participants, distribute to the Project Team, and provide updates as needed. This directory includes contact names, organization, Project role, addresses, telephone numbers, facsimile numbers, and e- mail addresses. 1.3 Concept Documents 1.3.1 Project Program Review: Review the Project Program developed by the Architect in collaboration with the Project Team, which defines the aesthetic, functional, quality, cost, and schedule goals. 1.3.2 Cost Report: Prepaze and distribute a Cost Report in conjunction with the Owner and Architect to document the status of the Construction and Non-Construction Cost estimates for the Design Phase duration described below. This report presents the current estimates relative to the total project budget, which is based upon the agreed upon Wheeler Opera House 21 °' Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 2 of 6 consensus-based program goals. Update the report on a periodic basis and/or as significant changes occur. 1.3.3 Summary Project Schedule: Prepare and distribute the summary Project Schedule in conjunction with the Owner and Architect, which includes critical team activities for the Design Phase duration described below. The schedule is a Critical Path Method (CPM) type. Update and distribute the schedule as significant changes occur. 1.3.4 Project Program Approval: Facilitate a Project Team Approval meeting to review the project program concepts, which includes the architectural program, design goals, project budget and cost models, and project summary schedule. 1.3.5 Project Program Guide (PPG): Assist the Architect with the final preparation of the Project Program Guide (PPG). This guide based on the Project Team's agreed upon concepts, which includes the architectural program, design goals, project budget and cost models, and project summary schedule, and becomes the baseline control document. 2. DESIGN PHASE (Criteria Design, Detailed Design, Guaranteed Maximum Price) 2.1 General Requirements 2.1.1 Management and Leadership: Provide Project Team leadership to coordinate, facilitate, and manage the Team's endeavors to deliver the Design Phase consistent with the Project goals. Assist with critical decision-making for the Project including decisions pertaining to the overall project approach. Provide Project Management staff to deliver these services to support the assignment as defined by the PPG. 2.1.2 Design Phase Duration: Design Phase services are for a period of approximately 40 weeks. These services may commence upon preliminary approval of the baseline control document goals. 2.1.3 Special Meetings: Attend City Council, Historic Preservation Commission, and Planning & Zoning meetings that have project issues on the agenda. The Special Meeting Allowance anticipates a total of five meetings during this phase. 2.1.4 Management Team Meetings: Participate in bi-monthly telephone conferences with the Owner, Architect, and Contractor representatives to discuss the overall progress of the project. Maintain Project Status Report including action items for follow up. 2.1.5 Progress Payments: Review progress payment requests from the Architect and Contractor and prepare recommendation of approval. 2.1.6 Schedule and Cost Report Updates: With input from the Architect and Contractor, prepare and distribute a summary project schedule and cost report consistent with the preliminary schedule and budget established during the Pre-Design phase. Provide updates at major milestones and as significant changes occur. The schedule will identify, coordinate, and record the activities of the Project Team and for the Project Team to use as a tool for managing to schedule objectives. Wheeler Opera House 21"Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 3 of 6 2.2 Criteria Design 2.2.1 Progress Work Sessions: Conduct stmctured work sessions with the Project Team to review and validate information, present conceptual ideas, discuss alternatives, resolve issues and schedule assignments to move the project forward. Prepare and distribute meeting notes. The Project Team anticipates that these sessions will occur every 4 to 6 weeks. 2.2.2 Criteria Design Review: Facilitate a Project Team review of the 100% Criteria Design documents to confirm conformance with the baseline control document (PPG). This review concentrates on determining if there are significant deficiencies and missing elements in the design without assuming the design and construction responsibility or liability of [he Architect and Contractor for final Project. A design review log will be established and maintained for each phase of the project to keep track of the wmmen[s that are generated by the Project Team and other stakeholders such as technical staff. These comments will be tracked through to completion as the project progresses. 2.2.3 Cost Estimating: Facilitate development of constmction cost estimate for the 100% Criteria Design documents by the Contractor to validate projected costs to verify wnformance with the baseline control document (PPG). 2.2.4 Estimate Reconciliation: Facilitate reconciliation of 100% Criteria Design construction wst estimate between the Contractor's estimate and the Architect's evaluation of this estimate. 2.2.5 Value Engineering: Lead a structured Value Engineering (VE) session, attended by Project Team participants to review the reconciled estimate, and to identify, evaluate and recommend alternative concepts. The process corelates the estimate to the facility functions, identifies creative options, analyzes these options relative to the program objectives, and evaluates systems, components, and details with respect to capital and operating costs. Prepare an itemized recap of prioritized VE proposals with estimated costs. 2.2.6 Schedule Analysis: Perform a schedule evaluation with assistance from Contractor and Architect to validate project delivery dates. This analysis includes investigation into whether milestone completion dates for construction are feasible. Identify long lead items specified and advise of strategies and courses of action to mitigate delays. Update the summary Project schedule accordingly 2.2.7 Milestone Approvals: Facilitate a Project Team Approval meeting to review the reconciled estimate, discuss priorities and validate project scope, delivery method, schedule and budget. 2.2.8 Milestone Report: Prepare and distribute a bound Criteria Design Report. This document summarizes the status of the scope, budget and schedule and becomes the updated baseline control document for the project. 2.3 Detailed Design 2.3.1 Progress Work Sessions: Conduct structured work sessions with the Project Team to review design Wheeler Opera House 21"Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 4 of 6 progress, discuss alternatives, resolve issues, and schedule assignments to move the project forward. Prepare and distribute meeting notes. The Project Team anticipates that these sessions will occur every 4 to 6 weeks. 2.3.2 Detailed Design Review: Facilitate a Project Team review of the 100% Detailed Design documents to confirm conformance with the updated baseline control document and to ensure that comments made during the previous review have been addressed. This review concentrates on determining if there aze significant deficiencies and missing elements in the design without assuming the design and construction responsibility or liability of the Architect and Contractor for final Project. A design review log will be established and maintained for each phase of the project to keep track of the comments that are generated by the Project Team and other stakeholders such as technical staff. These comments will be tracked through to completion as the project progresses. 2.3.3 Cost Estimating: Facilitate development of construction cost estimate for the 100% Detailed Design documents by the Contractor in conformance with the baseline control document (PPG). 2.3.4 Estimate Reconciliation: Facilitate reconciliation of 100% Detailed Design construction cost estimate between the Contractor's estimate and the Architect's evaluation of this estimate. 2.3.5 Value Engineering: Lead a structured Value Engineering (VE) session, attended by Project Team participants to review the reconciled estimate, and to identify, evaluate and recommend alternative concepts. The process correlates the estimate to the facility functions, identifies creative options, analyzes these options relative to the program objectives, and evaluates systems, components, and details with respect to capital and operating costs. Prepare an itemized recap of prioritized VE proposals with estimated costs. 2.3.6 Schedule Analysis: Perform a schedule evaluation with assistance from Contractor and Architect to validate project delivery dates. This analysis includes investigation into whether milestone completion dates for construction are feasible. Identify long lead items specified and advise of strategies and courses of action to mitigate delays. Update the summary Project schedule accordingly. 2.3.7 Milestone Approvals: Facilitate a Project Team Approval meeting to review the reconciled estimate, discuss priorities and validate project scope, delivery method, schedule and budget. 2.3.8 Milestone Report: Prepare and distribute a bound Detailed Design Report. This document summarizes the status of the scope, budget and schedule and becomes the updated baseline control document for the project. 2.4 Guaranteed Maximum Price (GMP) 2.4.1 Guaanteed Maximum Price (GMP) Proposal(s) Review and Approval: Review the Contractor's GMP(s) and any associated Subcontractor Proposals to facilitate delivery of the Project. This proposal will consist of the Scope of Work, Summary of GMP, Schedule of Values, List of Drawings and Specifications, List of Clarifications and Assumptions, Project Schedule, and Construction Wheeler Opera House 21"Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 5 of 6 Management Plan prepared and submitted by the Contractor. The review may include suggestions and recommendations relative to the GMP approval. The Contractor will furnish copies of all documentation including any Subcontractor Proposals and documentation necessary to evaluate the GMP 2.4.2 Subcontractor Outreach Presentation: Attend and participate in a Subcontractor Outreach Presentation to address Project specifics. This presentation performed by the Contractor will convey the Project goals and promote interest in the construction work. The Contractor will prepare the agenda and presentation, provide notification, document discussions, and perform follow-up actions 2.4.3 Subcontractor Pre-Bid Conferences: Attend and participate in Subcontractor Pre-Bid Conferences and offer suggestions and recommendations to facilitate the delivery of the Project. These conferences chaired by the Contractor will convey the Project goals, selection process, lines of communication and approach [o bid proposal submission for the Project. The Contractor will prepare the agenda and document the meeting discussions, follow-up actions, responsible team member and agreed upon timelines. 2.4.4 Pre-Award Conference: Assist the Owner with aPre-Award Conference with the Contractor and other Project Team members to facilitate the award of construction contracts and commencement of construction. This conference provides a review and discussion of the proposed Subcontractors, Contractor's self-performed work, Contractor's proposed Contract Price, contingencies, date of construction commencement, and scheduling of the Pre-Construction Conference. Offer suggestions and recommendations to promote the Project delivery. The Owner will prepare the agenda while the Contractor will document the conference discussions, follow-up actions, responsible team member and agreed upon timelines. END OF DOCUMENT Wheeler Opera House 21"Century Masler Plan Pfocus LLC Scope of Services 31 August 2009 Page 6 of 6 EXHIBIT "B" -HOURLY RATES PROGRAM MANAGER CITY OF ASPEN WHEELER OPERA HOUSE 21sT CENTURY MASTER PLAN This is an exhibit attached to, made a part of and incorporated by reference in the Agreement between City of Aspen ("Owner") and Pfocus L.L.C. ("Program Manager"). Additional Services and Special Meeting Allowance: The Owner shall compensate the Program Manager on an hourly basis for Additional Services and Special Meeting Allowances in accordance with the rate schedule as follows: Title Project Director Project Manager Project Engineer Project Coordinator Administrative Assistant Hourlv Rate 150.00 135.00 88.00 65.00 48.00 1 of 1 City of Aspen Wheeler Opera House 21s` Century Master Plan ,4~ Iz0°® CERTIFICATE OF LIABILITY INSURANCE eizsizo s' PRODUCER (460) 969-2291 FAX: (480) 833-4833 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Passey-Bond Co., Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 28 North Center Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. O. Box 819 Mesa AZ 85211 _ _ INSURERS AFFORDING COVERAGE I NAIC# INSURED _ _. ` --___ ~ INSURER A:C N A Insurance/Schinnerer PFocus LLC INSURER B:Continental Casualty/Schinner ~' 1425 N 1st Street INSURER C: ' Suite 100 INSURER D: ' Phoenix AZ SSOO4 INSURER E: ' COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHE R DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAV BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BV THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OfBUCH POLICIES. AGGREGATE LIMITS SHOWN MAV HAVE BEEN REDUCED BV PAID CLAIMS. INSR D'C i POLICY NUMBER ~ POLICY EFFECTIVE PODGY EXPIRATION'. LIMITS ERAL LMBILRY GEN EACH OCCURRENCE $ 1,000,000 ~ DAMAGE TO RENTED - ~~ X' COMMERCIAL GENERAL LIABILITY I PREMISES (Ea occurrence) _ $ lOO, OOO A I i ~I, J~CIAIMS MADE _X_i OCCUR 4014293667 7/8/2009 7/8/2010 MED EXP (Any one person) $ 5,000 _ _ PERSONAL 8 ADV INJURY $ 1 , OOO, OOO I ~~,, ~ GEN_ER_AL_AG_G_REGATE__ _$ 2,000,000 ~, ~'.. GENL AGGREGATE LIMITAPPLIES PER: I 1 ' ,PRODUCTS-COMPIOPAGG 8 2,000,000 POLIGV X '. PRO- ', LOC ' ' 'I AUTOMOBILE LIABILITY '~ 1 ANY AUTO COMBINED SINGLE LIMIT ~' ~ (Ea accitlenl) $ 1, OOO, OOO i B II I II ALL OWNED AUTOS 2097380366 ' 7/8/2009 7/8/2010 BODILY INJURY $ ~ I, SCHEDULED AUTOS (Per person) X ~. HIRED AUTOS BooR~ $ X ' NON-OWNED AUTOS I (Perawitlenl) ~ -- ---------. ~ ' ~ PROPERTY DAMAGE ' $ . (Per accitlenl) i GARAGE LIABILITY '~, ''i~ AUTO ONLY-EA ACCIDENT $ ANV AUTO ~ ', - - ! EA ACC , $ _ -. OTHER THAN -_- AIITOONLY: AGG '~ $ ESS/UMBRELLA DABILnY EXC EACH OCCURRENCE $ ' _- -. _ _. ~. OCCUR ~ CLAIMS MADE ', AGGREGATE $ I _-- '~, DEDUCTIBLE ~ $ -- -- RETENTION $ $ ~ WORKERS COMPENSATION '" WC STATLL ~OTH- AND EMPLOYERS' DABILRY YIN (TORY LIMITS ER ^ ANY PROPRIETORIPARTNERIEXECDTIVE E.L. EACH ACCIDENT $ 1 --- - ---- -- OFFICERIMEMBER EXCLUDED] I (Mantlabry In NH) ', E.L. DISEASE - EA EMPLOYEE $ ' if yes, tlescrbe antler - -"--- SPECIAL PROVISIONS below EL DISEASE-POLICY LIMIT $ B OTMERprpfeSS10Da1 MCH276188077 7/8/2009 17/8/2010 '.Par Claim 1,000,000 Liability '. Aggraqata 2,000,000 ~ ' ' 15 000 DESCRIPTION OF OPERATIONS (LOCATIONS I VEHICLES/ EXCLUSIONS AOOED BY ENDORSEMENT/ SPECIAL PROWSIONS Project: Wheeler Opera House 21st Century Master Plan, Aspen, CO. Additional Insureds included on a Primary and Noncontributory basis per attached blanket form G17957G. Waiver of Subrogation applies per attached blanket forma CG2909 and G560158. The City of Aspen 130 South Galena Street Aspen, CO 81611 ACORD 25 (2009/011 SHOULD gNYOF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION GATE THEREOF, TXE ISSUING INSURER WILL ]I~~{/~MAIL 3O DAYS WRnTEN NOTICE TO THE CERTIFICATE HOIDER NgMEO TO THE LEFT, D~h;JQX9C`9F#)C AfDf3W6 ~XdfXB14~bYd~X AUTHORIZED REPRESENTATIVE wry,} Ryan M Passey/PEGGY ~~~ ~ -/- ~~-~~- (c979RR.2009 ACORn CORPORATION All rinhfa reserved INS025 (zoosol I The ACORD name and logo are registered marks of ACORD CJVA G-17957-0 tad. otrot) IMPORTANT: THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE; CLAIM OR'SUIT:-SEE PARAGRAPH C.1.OF THIS ENDORSEMENTfOR THESE DUTIES. ALSO,-THIS ENDORSEMENT'CHANGES THE CONTRACTUAL LIABILITY COVERAGE WITH RESPECTS TO THE "BODILY INJURY" OR "PROPERTY DAMAGE" ARISING OUT OF THE "PRODUCTS-COMPLETED'.OPERATIONS HAZARD".. 5EE PARAGRAPH B.3. OF THIS ENDORSEMENT FOR THIS COVERAGE CHANGE. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CONTRACTOR'S. SCHEDULED AND BLANKETADDITIONAL ENSURED ENDORSEMENT WITH'LIMITED PRODUCTS-COMPLETED OPERATIONS COVERAGE This endorsement modifies. insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Parson « Orgenizatkrn: Designated Protect: (Coverage ratdel' lhkt andoraemaM Is not amened by an entry or Iack o1 entry th Ufa Schedule above.) A. lMHO ~ AN INSURED (Seatlon g) is amended to 2. The Limits of insurance applicable to the include as an Msured arty person or organization, additional insured are those specified in the including airy person or organization shown in the written contract of wriffen agreement or in the schedule above, (called additional insured) whom you Dedaretions of this pdicy, whldtever is less. are required to add as an additlonal insured on this These Limns of Insurance are inclusive of, and not policy under a written contract or written agreement; in addition to, the Limits of Insurance shown in the but the written contract or written agreement must be: Dedaretions. r= t. Currently in effect or becoming effective during the 3. The coverage provided to ths additional insured term of this policy; and by this endorsement and paragraph f. of the 2. Executed prior to the "bodily injury," "property definRion of "insured contract under i~ damage," or "personal and advertising injury. DEFINITIONS (5edion V) do not apply to "body injury" or "properly damage" arising out of the B. The insurance provided to the additional insured Is "products-completed operations hazard" unless limited asfdlows: required btr the wdtten contract or written 1. That person or organization is an adrGfional agreement. When coverage does appy to "bodiy Injury" or "property damage" arising out of the insured solely for liabilfy due to your negligence "products-completed operations hazard" such c specificaly resulting from 'your work" for the cotrerege will not appy beyond: addRiorutl insured which is the subject of the written contract or written agreement. No a The period of time required by the written coverage applies to liability resulting from the sole contract or written agreement; or negligence of the additional insured. G-17957-0 Page 1 of 2 (Ed. Otro1) G-17957-G (Ed. 01101) b. 5 years from the rbmpletion of "your work" on the project which is the subject of the written contract or written agreemerrt, whichever is less. 4. The insurance provided to the additional insured does not apply to "bodily Injury,, "properly damage,, or "personal and advertising injury" arising out of an architect's, eng(neer's, or surveyor's rendering of or failure to render arty professional services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and epedfieations; and b. Supervisory, or inspection activities performed as part of arty related architectural or engineering activities. C. As respects the coverage provided under this endorsement, SECTION N - COMMERCULL GENERAL LIABILITY CONDITIONS are amended as follows: 1. The following Is.added to the Duties In The Event of Orxurrence, Offense, Claim or Suft Condidion: e. An additional insured under this endorsement will as soon as practicable: (1) Give wrilien notice of an occurrence or an offense to ~ which may result in a claim or "suit" under this insurance; (2) Tender the defera;e and indemnity of any claim or "suit" to any other Insurer which also has insurance for a loss we cover under this Coverage Part; and (8) Agree to make available arty other insurance which the additional insured has for a loss we cover under this Coverage Part. f. We have no duty to Mend or indemnify an addttionaf insured under this endorsement until we receive written rrotice of a claim or "suiC from the additional insured. 2. Paragraph 4.b. of the Other Insurance Condition is deleted and replaced with the following: 4. Otlrer bawranae b. f3rcesa Insurance This insurance u excess over any other insurance naming the addttionel insured as an insured whether primary, excess, contingeM or on arry other basis unless a written contract or written agreement specifically requires that this insurance be either primary or primary and noncontributing. G-17957-G (Ed. 01/01) Page 2 of 2 POLICY NUMBER: GONBYfERCU1I.~OENEtiAL LIABILITY CG 24 04 OS 00 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies Insurance provided under the fdlowkig: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETEDOPERATlONS LIABILITY COVERAGE PART SCHEDULE as$ _~ i a. i~ v :~ Nmne Of Person dr Organisation: Any person or organisation with whom you agree in writing to waive your right to recover against them. You must agree to this waiver prior to the date of ieas_ The toAowing is added to Paragraph B. TrarwTer Of Riphb Ot Recovery Agektei Otirere To Ue of Section N - Conditions: We wawa any rlghi of recovery we may have against the parson or organizatbn shown In the Sdwdule above because of payments we make for ir~ury or damage adsMg out of your ongdng operatons or 'your work" done under a contras wkh that person or organization and Induded M the 'produrte•completed operations hazard.' TIC waiver applies only m the perm or organization shown in tire Schedule above. CG 240405 09 Copyright, Insurance Services OHlce, Inc., 2008 Page 1 of t POLICY IiU1838R IpBUAfD llAtlB 89D ADDH888 C 4014293667 PFOCUS, LLC 1425 H 1ST STREET, SUITE 100 PHOBHIX, AZ 85004 POLICY C98AO88 8CH8DIIL8 CO4 4-1093 Thie Change 8ndorsemest changes the Poiiay. Pleaw read it aarofully. Th1a Chaaga 8ndorsamsnt is a past oP yonr Poiiay end take effsat on the effeative date of your Poiiay, unless another elfaotive data is shorn. CG 24 04 10 93 SCHEDULE Hame of Person or Organization: Airy person or organization with whom you have agreed in writing in a contract or agreement to waive any right of recovery against auah person or arganizatioa, but only if the contract or agreement: 1. Is in effeaC or becomes effective during the term of this policy; and 2. Was executed prior to loss. 8~ CC 8= _ 1 ~ `T. ~. CIIWIIIN W~Il e1011: V sa~r G-56015-B (EO. 11/91) S~/-Arizona At work for you Certificate of Insurance Certificate Mailed To: THE CITY OF ASPEN 130 SOUTH GALENA STREET ASPEN CO 81611 Proof of Coverage Description of Operations Name of Insured: Pfocus LLC 1425 N 1st St Ste 100 Phoenix AZ 85004 Date Issued: 08/31/2009 Certificate Number: 16 Policy Number: 500596 Origin Date: 07/22/2006 Expiration Date: 07/01/2010 Liability Limits: 500/500/500 (000 Omitted) CLERICAL OFFICE EMPLOYEES-N.O.C., CONTRACTOR -PROJECT MANAGER, CONSTRUCTION EXECUTIVE, CONSTRUCTION MANAGER OR CONSTRUCTION SUPERINTENDENT @ Wheeler Opera House 21st Century Master Plan -- 320 E Hyman Ave, Aspen CO 81611 Job Number: Location: Will be renewed for the next policy period unless we are otherwise directed by our policyholder. Coverage under this policy applies to Arizona hired employees only. It is agreed that waiver of subrogation is effective only as respects to the above Certificate Holder for the project described herein. This agreement shall not operate directly or indirectly to benefit any other person or organization. Should the above policy be canceled by the SCF ARIZONA before the expiration date thereof, the SCF ARIZONA will endeavor to mail 30 days written notice to the above named Certificate Holder, but failure to mail such notice shall impose no obligation or liability of any kind upon the SCF ARIZONA. This Certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policy listed hereon. This is to certify a workers' compensation policy has been issued to the insured listed hereon and is in force for the period referenced. Certificate Issued To: The City of Aspen 130 South Galena Street Aspen CO 81611 Authorized Representative of-slows oinorzooo r. "While we do not believe our recommendations would have had a material impact on the overall cost of Burlingame Ranch Phase 1, they may have mitigated project related miscommunications and improved overall stakeholder understanding of the broader Burlingame development." Business Process Improvement • Establish Development function as a stand alone department • Redeploy existing experienced asset managers to oversee Development function .__.---~ • Leverage 3rd Party service providers such as construction Program Managers to augment existing staff and facilitate real estate development • Establish standardized policies, procedures, tools, and templates • Select I Implement construction management technology and reporting tools • Leverage technology to create life-to-date lyear-over-year reporting of construction cost • Develop a clear and comprehensive communication plan GMP Contract Benchmark • Aggregate major clauses, terms and conditions • Create detailed progress reporting requirements including content, time, frequency and location of status meetings • Establish specific contractor accountability dates and milestones • Require owner approval for replacement of key resources • GMP /Developer Model accomplished City's objectives - Limited number of change orders and cost variances were minimal - With the exception of owner directed changes and unforeseen conditions, change orders appear to be within a tolerable range - City shifted risk of errors and omissions to Shaw construction • Moving forward A8M recommends Construction Manager as Agent Model. Advantages include - Improved Oversight & Contractor Accountability - City Retains Design Rights - Reduced Risk & Cost - Improved Communication Burlingame Ranch Brochure • Brochure produced under the direction of former Assistant City Manager and was intended to communicate the cost of the Shaw / Poss / DHM scope of work only (design and construction) • Brochure data was reviewed but lacked rigorous scrutiny that may have revealed errors or omissions in the data • No evidence of intentional misrepresentation by current or former City of Aspen employees "Our analysis identified no significant deficiencies in project oversight or delivery; nor did A&M find any intentional misrepresentation of costs ... " McMahan and Associates, I.I.c. Certi/ied Public Accountants and Consultants Web Site: www.mcmahancpa.com Suite 222/Avon Center Telephone: (970) 845-8800 100 West Beaver Creek Blvd. Facsimile: (970) 845-0851 P.O. Box 5850 Avon, CO 81620 E-mail: mcmahan@mcmahancpa.com RESULTS OF INDEPENDENT ACCOUNTANT'S REPORT ON APPLYING AGREED-UPON PROCEDURES PROCEDURE RESULTS: 1) Verify Burlingame Ranch Phase I cost and revenue numbers as prepared by the City of Aspen on their Burlingame Ranch Project Reconciliation prepared May 13, 2008. The Burlingame cost and revenue numbers as prepared by the City of Aspen are accurate and can be relied upon for project analysis and decision making. 2) Trace a sample of payments to review payments made to the general contractor (Shaw Construction). The project costs were properly documented, reviewed, and approved by City staff and appropriately relate to the Burlingame project's construction contract. 3) Interview staff and provide recommendations for improvements to the City's internal construction management process. . Improvements were recommended in the City's construction management process that included: i) Adopt a more formalized process for preparing voter information in anticipation of future ballot questions. ii) Utilize integrated project management software. -~ iii) Create a construction management team for all projects exceeding a specified amount. iv) Specify a required construction management structure based upon the anticipated scope of a project. Construction Experts Group (CEG) Final Recommendations December 11, 2008 1) It is recommended that for future phases of development at Burlingame Ranch, the maximum achievable denstty of 293 units (based on the conceptual unit and building designs developed by the CEG) be pursued for the reason of the land savings alone. Savings is estimated to be around 59MM in land savings be adding 57 units to Burlingame land rather than elsewhere. 2) In the event that the 293 unit plan is voted down and the 236 plan must go forward, it is recommended that 236 units be achieved by using the design and construction principles that were the basis of the creation of the 293 unit plan and perhaps by strategically removing buildings from the 293 unit plan to leave open space so that future buildings could be constructed there at a later date. 3) The use of modular, factory-built housing is recommended, but not mandatory, to achieve cost efficiencies as well as to speed construction of affordable housing. 4) It is recommended that unit sizes be standardized to allow for cost efficiencies that can be achieved through unit standardization combined with modular construction. This will also allow for units to be more easily converted from a higher category to a lower category (or vice-versa) in the future in the event that conditions change. 5) It is recommended that the APCHA guidelines be reconsidered to take Into consideration unit size standardization. 6) The City should seek to hire a firm or individual to act as a Development Management Consultant to provide a broad spectrum of management and oversight for the design and development of Burlingame Phases 283. Services provided should include project accounting, budgeting, oversight, design development management, construction management, cost management, maintenance issues and more. 7) The City should seek to hire firms or individuals who can create comparable estimates from conceptual plans. Comparable estimates should be created from the conceptual plans that exist in order to measure the possible level of savings that could be achieved with the conceptual increased denstty plan that the CEG has created. These comparable estimates can also be used as checks against future bids for developing the project. -~ 8) The City should pursue, with the assistance of the Development Management Consultant, an Integrated Project Development Team (IPD) Including Design services, Construction Management-Constructor (CMc at Risk) services, Commissioning Service Provider, and Internal Stakeholders. The early formation of the IPD provides an open and collaborative process Involving Input from all parties - designers understand the ramifications of decisions when they are made, decisions are not made solety on a first-cost basis, and time value design (estimated budgeting) allows for cost feedback and early total project cost commitments. The "at risk" component of the CMc at Risk allows the Development Management Consultant and staff to recommend retaining those services through construction or seek competitive bid proposals. Retention of the services from the CMc at Risk is dependent on a verification of the bid against reliable estimates. Staff Report on the Work of the CEG 12/12/2008 Page 30 of 46