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HomeMy WebLinkAboutresolution.council.068-01 RESOLUTION NO. Series of 2001 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND FRIENDS FOR THE ASPEN SPORTS AND RECREATION CENTER. AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT(S) ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Agreement between the City of Aspen, Colorado and Friends for the Aspen Sports and Recreation Center, a copy of which contract is annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves an Agreement between the City of Aspen, Colorado and Friends for the Aspen Sports and Recreation Center, 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: ~ ]// , 2001.. 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 2-~_~ /[ ,2001. AGREEMENT THIS AGREEMENT, made and entered into this // day of June, 2001, by and between THE CITY OF ASPEN, COLORADO, a Colorado mumcipal corporation ("City"), and FRIENDS FOR THE ASPEN SPORTS AND RECREATION COMPLEX, a Colorado nonprofit corporation ("SPARC"), WlTNESSETH: WHEREAS, City is in the process of designing and plans to construct a community recreation center at Iselin Park in Aspen, Colorado, which complex will include without limitation a swimming facility, an ice arena suitable for ice skating, ice hockey and other activities, and other recreational facilities (the "Recreation Center"); and WHEREAS, while most of the Recreation Center will be built with public funds, the construction of the ice arena facility and certain common elements requires private funding; and WHEREAS, SPARC has been formed for the primary purpose of raising the private funds necessary to construct the ice arena facility portion of the Recreation Center, and has received a Determination Letter from the Internal Revenue Service stating that SPA_KC is a tax-exempt organization within the meaning of Section 501(c)(3) of the Internal Revenue Code; WHEREAS, City desires to enter into an enforceable agreement with SPARC to construct the ice arena facility in the Recreation Center if SPA_KC raises the necessary funds within the time frames set forth herein, and SPARC desires to enter into such an agreement with City; and WHEREAS, City and SPARC also wish to agree upon various related matters. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Bidding and Construction of Ice Arena. Attached hereto as Exhibit A and made a part hereof by this reference is a Phasing Plan and Bid Amount for the construction of an ice arena facility in the Recreation Center. Attached hereto as ....... .Exhibit B and made a part hereof by this reference is a SPARC Fundraising Status Report as of June 11, 2001. (a) City has prepared Construction Documents and Specifications for the Recreation Center, including Phases I and II of the ice arena facility, which Construction Documents and Specifications have been reviewed and approved by SPARC. City has included the Construction Documents and Specifications for Phases I 1 and II of the ice arena facility in the Construction Bidding for the Recreation Center. City and SPARC have approved the bid made by the general contractor for the Recreation Center, and the bid amounts for Phases I and II of the ice arena facility are set forth on attached Exhibit A. Upon the issuance of a Notice of Bid Award by the City Council, City covenants and agrees with SPARC that City shall proceed to construct Phase I of the ice arena facility at the same time that it constructs the remainder of the Iselin Park Recreation Center. Said construction shall be accomplished in a good, diligent and workmanlike manner and in accordance with the approved Construction Documents and Specifications. Based upon the bid amount set forth on attached Exhibit A, it is mutually agreed that SPARC's share of the cost of designing and constructing Phase I of the ice arena facility shall be $ ..~,./.~ ~ .2~ ?. and City agrees to be responsible for all such costs and expenses in excess of that amount excepting the costs of any SPARC-initiated Change Orders, which shall be SPARC's responsibility. City acknowledges SPARC's fundraising efforts to date as set forth on attached Exhibit B, and accepts said current fundraising for purposes of proceeding with construction of Phase I of the ice arena facility. (b) Based on the bid amount set forth on attached Exhibit A, City further agrees that in the event SPARC raises the additional $ ,7 ~'~?~57~2 required to construct Phase II of the ice arena facility (which includes'a total allocation to the ice arena facility of$/~' ,F~', ~,~<' in common costs) by November 15, 2001, the City Council agrees to proceed with construction of Phase II of the ice arena facility at the ,,~-,, same time that the Recreation Center is being completed. If the Phase II bid amount set forth on Exhibit A is raised later than November 15, 2001, SPARC shall notify City when that amount has been raised, and City shall promptly send the approved Construction Documents and Specifications for Phase II of the ice arena facility out to Construction Bidding again. Upon approval of the subsequent bid for Phase II of the ice arena facility by City and SPARC, and upon the issuance of a Notice of Bid Award by the City Council, City shall commence construction of Phase II of the ice arena facility as promptly following the issuance of the Notice of Bid Award as circumstances (including weather) allow, unless the approved bid (together with and including SPARC' s share of common costs) exceeds the $ d ~'~2 .~ ~'8~' original bid amount reflected on attached Exhibit A, in which case City shall commence construction of Phase II as promptly as circumstances allow after SPARC raises the difference between $ 3 ff~5*',7~ and the new bid amount. Once construction is commenced, City shall complete the construction in a prompt and diligent manner. Said construction shall be accomplished in a good and workmanlike manner and in general accordance with the approved Construction Documents and Specifications for Phase II. It is mutually agreed that SPARC's share of the cost of designing, constructing and finishing Phase II of the ice arena facility shall be the amount of the bid that is accepted therefor (either as set forth on Exhibit A or in the new bid, whichever is higher), together with and ....... 'including SPARC's $/P'.Y .~ ~/-~,~ share of common costs (some of which will have been incorporated in the approved bid for Phase II), and City agrees to be responsible for all such costs and expenses in excess of that amount excepting the costs of any ~ SPA_KC-initiated Change Orders, which shall be SPARC's responsibility. (c) SPARC hereby commits to provide City with a total of $8,000,000 towards the construction of the ice arena facility, including SPAKC's allocated share of common costs associated with the Recreation Center. With respect to Phase III of the ice arena facility~ SPARC agrees tO delivery, to City the balance of the $8,000,000 (after deducting the amounts delivered to City pursuant to subparagraphs (a) and (b) above) by September 15, 2002 Said remaining funds shall be committed to finishing out the ice arena facility as well for furnishing and equipping the ice arena facility to the extent determined necessary or appropriate by SPARC (e.g. scoreboard, sound system, otc ) as more particularly described on Exhibit "C" attached hereto and made a part hereof. (d) SPARC shall have the right to review and approve, before execution by City, all contracts for the construction of Phases I and/or II of the ice arena facility, which contracts shah be for either a stipulated sum or for the cost of the work with a guaranteed maximum price. (e) The term "raise" as used in subparagraph (b) above shall mean funds that are on deposit in a SPARC bank account and available for distribution to City, or funds represented by legally binding and irrevocable donor pledges to SPARC pursuant to Pledge Agreements approved by the City Attorney, or the corresponding bid or Change Order amount of in-kind contributions of materials and/or labor to the Recreation Center (e.g. windows and doors from Pella) that are approved by City, or a combination of such funds. 2. Ownership of Ree~'eation Center. Despite the fact that the ice arena facility will be constructed by City with funds furnished by SPARC as set forth in this Agreement, SPARC expressly agrees that it will not claim any title, equitable or otherwise, in any real or personal property associated with the Iselin Park Recreation Center, including the ice arena facility, or m any related facilities constructed or otherwise provided by City. 3 Additional Covenants of City. City further covenant§ and agrees with SPARC as follows: (a) City shall dedicate and thereafter reserve the land necessary for the construction of the ~ce arena facility, as reflected on the Construction Documents and Specifications. Following completion of construction, the ice arena facility shall be used in perpetuity for ice arena purposes and for no other purpose without the express prmr written approval of SPARC or, if SPA.KC is no longer in existence, the Advisory Board established pursuant to Paragraph 8 below. (b) City shall be responsible for any housing mitigation obligations that may be required by the Aspen Land Use Code for the construction and operation of the ice arena facility. (c) City shall not charge SPARC or any other person or entity for any Community Development Department planning fees associated with the ice arena facility. (d) City shall be responsible for and will pay as and when due all costs and expenses associated with the operation of the ice arena facility. (e) City shall pay for any tree mitigation fees that may be required in connection with the construction of the ice arena facility, and shall maintain at City's cost all surrounding landscaping and landscape features associated with the ice arena facility. (f) City shall construct at its cost all reqmsite utility connections with respect to the ice arena facility and shall pay for any associated utility connection fees. (g) City shall pay for the initial construction and for the on-going maintenance of all trail and bridge connections associated with the construction and operation of the ice arena facility. (h) City shall provide construction management services during the construction of the ice arena facility, at City's cost. (i) City shall pr9vide at its cost all requisite parking facilities and/or parking mitigation associated with the construction and operation of the ice arena facility. , (~ A portion/6~the funds dejl-~ated to the~nstructi ,o,n of t~he Rect'eation Cefiter~by the City/co,he from bal//ot ihitiative 2c./r~arding exc~property j~taxe~s" appro/~ed by\ihe vote]~ in ~qovember//of 20{0. This/initiative conten~la'~d $2,51O0,000/net of [~terestfxpens~s woulgV'be provided fg/r the gecreatior),/Cent~ in / \t ~'~ acco~danc~with arw~rov~y the~ity throukgh ~is \ initia' oexceed $~00,000, of those excess funds on furnishing and fixtures (or upgrades thereto) reasonably selected by SPARC. 4. Funding Procedure. As construction progresses on the ice arena facility, SPARC agrees to distribute donated funds to City in accordance with the following procedure: (a) The project contractor shall keep an entirely separate accounting ........ and shall issue separate draw requests for work performed and/or materials furnished in connection with the ice arena facility and shall state the percentage of the bid amount represented by the draw request and the cumulative percentage of the bid amount billed to date. Each monthly draw request shall also be accompanied by appropriate lien waivers. If requested, SPARC will be given access to all related invoices specific to the ice rink facility. 4 (b) When a draw request has been approved by the project architect and by the City's construction manager, it shall be submitted to SPA_KC. SPAKC agrees to distribute the amount of approved draw requests to City on a quarterly basis, such distribution to be made within 10 days after receipt of each third monthly draw request by SPARC. (c) SPA,KC shall have the right to withhold distribution of the final $800,000 of the Phase II bid amount until the completed ice arena facility has been punchlisted by the project architect and the City's construction manager, all punchlist items have been satisfactorily performed, and a final Certificate of Occupancy has been issued for the ice arena facility. 5 Namin~ Rights. City understands and agrees that SPARC, and following completion of construction of the original ice arena facility, the Advisory Board established pursuant to Paragraph 8 below, shall have the right to offer naming rights for certain facilities, amenities or fixtures associated with the Iselin Park Recreation Center, the ice arena facility, or the neighboring City-owned ball fields, bridges, tennis courts and related amenities, as an inducement to potential donors. City covenants and agrees with SPA_KC that City will honor such naming rights provided the following procedures are followed: (a) The facility, amenity or fixture is listed on the City-approved Schedule of Naming Opportuniti.es attached hereto as Exhibit D and made a part hereof by this reference. (b) The particular donor has exercised its naming rights within one (1) year following the date of the donor's contribution or pledge, whichever first occurs. (c) City is given an opportunity to approve the name chosen for a facility, amenity or fixture to ensure good taste and compatibiliiy with the overall design of the Recreation Center and neighboring facilities; provided, however, that City shall not unreasonably withhold its approval of names chosen by donors (d) City approves in writing any portion of a facility, amenity or fixture that is not listed on attached Exhibit C for which an offer has been made by a potential donor, which approval shall include the chosen name and, eventually, the design of the sign that is proposed to be placed on or near the portion of the facility, amemty or fixture chosen to be named. (e) The design of all signs proposed to be placed on or near a facility, ...... .amenity or fixture identified on attached Exhibit C shall be approved in advance by City, and shall be in compliance with the sign regulations of the City of Aspen. City shall not unreasonably withhold its approval of a proposed sign, but shall determine the appropriateness of the design and text thereof in the context of good taste and the overall design of the Recreation Center and neighboring facilities. 6. DOnations for Other Facilities. City understands that SPARC may elect to accept donations for facilities or amenities at the Recreation Center that are not directly associated with the ace arena facility. If the proposed donation is for a facility or amenity that is not incorporated in the present Construction Documents and Specifications for the Recreation Center, SPA_KC shall first confer with City to determine if City wishes to include such facility or amenity in the overall design and operation of the Recreation Center. In the event SPARC receives such donations and the related facility or amenity is either already incorporated in the Construction Documents and Specifications for the Recreation Center or the City has determined that it wishes to include such facility or amenity in the overall design and operation of the Recreation Center, City covenants and agrees to establish separate funds for such donations and to expend the funds only for the specific purposes for which they are donated. Any such donations for other facilities or amenities shall not be included in the aggregate amount of funds raised by SPARC under Paragraph 2 above. 7. Operational Details. City and SPARC acknowledge that the operational details of the ice arena facility and of the overall Recreation Center have not been finalized as of the date of this Agreement. Accordingly, City covenants and agrees that it will work closely and cooperatively with SPARC and its members and potential donors to finalize and develop an operating manual for all of the facilities at the Iselin Park Recreation Center complex, including the ace arena facility. ~..,~ 8. Advisory Board. City recognizes that most if not all of the capital costs of constructing the ice arena facility will be raised from private donations, and appreciates that Such donors have the right to expect that their contributions will be spent an support of a high quality facility in both function and appearance, as well as a facility that operates economically and efficiently. In order to ensure that City operates the ace arena facility and the remainder of the Recreation Center in the best possible manner, consistent with any budgetary constraints that City may encounter in the future, from and after the date of this Agreement City agrees to consult in advance and on a continuing basis with SPARC and/or with an Advisory Board established by SPARC (individually and collectively the "Advisory Board") on all matters relating to the use and operation of the ice arena facility and of the Recreation Center complex (including tlae associated parking areas and other amenities), including without limitation the following matters: (i) The formulation and implementation of operating guidelines, policies and procedures; (ii) the programming and scheduling of all uses of the ice arena facility, and any related fee schedule, and the coordination of such programming and scheduling with the uses of the Aspen Ice Garden; (iii) the hiring, performance revi ew and termination of employees of the ice arena facility and of the remainder of the Recreation Center complex; and (iv) the annual operating budgets for both the ice ...... arena facility and the remainder of the Recreation Center complex, appropriate reserves, and the capital amprovement maintenance programs. Before making decisions or adopting policies with respect to any such matters, City agrees to give full and careful consideration to the views and recommendations of the Advisory Board It is the mutual intention and understanding of the parties that the Advisory Board shall be an independent, functional and influential entity, and City agrees not to do anything that impairs or diminishes the role or authority of the Advisory Board. The Advisory Board shall be appointed and removed from time to time by the Board of Directors of SPARC, for such terms and pursuant to such procedures as may be adopted from time to time by the SPARC Board. In the event of the dissolution or other termination of the existence of SPAR. C, the final Board of Directors of SPA_KC shall establish an on-going procedure for the appointment and removal of the members of the Advisory Board. 9. Severabilit¥. If any provision of this Agreement shall be invalid, illegal or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement itself or any other provision hereof, and there shall be substituted for the affected provision, a valid and enforceable provision as similar as possible in substance and effect to the affected provision. 10. Attorney's Fees. In the event of any litigation arising out of this Agreement, including without limitation litigation to interpret or enforce the provisions hereofi the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs ~ncurred in connection therewith. 11. Counterpartsl Facsimile Signatures This Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile signatures shall be treated as original signatures hereon. 12. Governing Law; Jurisdiction. The laws of the State of Colorado shall govern the interpretation, validity, performance and enforcement of this Agreement. Any legal action brought in connection with this Agreement shall be commenced in the District Court for Pitkin County, Colorado, and each party hereto voluntarily submits to the jurisdiction of such court. 13. Binding Effec.t. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns forever. 14. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties relating to the subject matter hereof. All prior representations or agreements relating to the subject matter hereof, whether written or oral, including without limitation the City Commitment Letter to SPARC dated July 11, 2000, are hereby merged into this Agreement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: THE CITY OF ASPEN, COLORADO, a Colorado mumcipal corpo~ Kathryn ocy~ ity er Approved as to Form: Jo"h~n ~o}'c"est[r, City Attorney SPARC: FRIENDS FOR THE ASPEN SPORTS AND RECREATIO~GOM~EX, a Colorado ~ non~.~ ~ ~ ~ Scott Writer, President Beth HoffBlaclcmer, Secretary 8 Exhibit A Aspen Sports and Recreation Complex SPARC Phasing Model 30-Mar-01 (Based upon data and breakdown as compiled by Shaw Construction and ProjeCt Manager Steve Bossa,--~'~ Phase I Foundations $539,150 Superstructure $852,475 Services HVAC $770,181 Electrical $255,000 Fire $100.159 Sitework $249,174 Fees. Bonds, Insurance $193,630 TOTAL PHASE I $2,959,769 Phase II Allocation Elevator Water dist. Sanitation Drainage Gas Gemeral Requirements Services (Balance) Commons & Entry Soft Costs Subtotal Allocations $1,935,425 Interiors Ice/Team area/seating 33,912 SF @ 20.01 $976,038 ~' Ice $602,246 Equip/Fum $150.000 Contingency $225,000 Fees, Bonds, Insurance $136,730 TOTAL PHASE II $4,025,439 Phase III Balance of Funds paid to the City of Aspen $1,014,792 TOTAL PHASE III $1',914,792 TOTAL PHASES $8,000,000 Appendix B SPARC Fundraising Status as of June 8, 2001 Net Cash $1,764,819.97 (Cash Contributions - Operating Expenses) Contracts John and Carrie Morgridge $1,500,000 $1,425~000.00 (less 5% operating) Pledges Outstanding Steven & Kiki Esrick $250,000 Larry & Susan Marx $150,000 Sam Houston $50,000 Urban Foundation $50,000 Lee and Laurie Pardee $25,000 Emie Fyrwald $8,000 Beth Hoff $4,000 $537,000.00 Total Accountable Funds Raised by. May 24, 2001 $3~726~819.97 Written Commitment Jonathan Lewis and Roberto Posada and Family $1,000,000.00 (Last Million Dollars for the project) om mooooo~oomo~oo oooooooooooo Exhibit D Naming Opportunities Complex The "Lodge" Lobby Plaque Sculpture Fireplace Mooreflselin/Brown History Wall Climbing Walt Multi-purpose Room Tiles ~ Ice Arena Warming Room Dasher Boards Scoreboard(s) Ice Logo(s) Ceiling Banners Team Rooms (5) AudioNisual Room (1) Ice Resurfaeer(s) Trophy Case(s) Seats (450) Press Box/VIP Seating Men's Locker Room Women's Locker Room Co-ed Locker Room Women's figure Skating Locker Room Tiles Pool Indoor Pools and attachments Changing Rooms Sauna/Steam Room Outdoors Ballfield #1 (Iselin) Ballfieid #2 (lselin) Ballfield #3 (Moore) Ballfield #4 (Moore) Pedestrian/Nordic Bridge over Maroon Creek Rd Outdoor Pool Arena- Landscaping/sculpture area Tennis Courts Outdoor Party Area Bridge over Maroon Creek to Tiehack Transit Center Parking Area Parking Spaces Sculpture (up to 5) Picnic Areas (up to 5) Outdoor Benches (up to 10) Sledding Hill Maroon Ck Rd. Traffic Island Shown on 99/00 plans as being located next to current RFTA site between Rotary Park and the Elementary. Bricks on any outdoor paths, rails, etc...