HomeMy WebLinkAboutresolution.council.115-12 RESOLUTION # 115
(Series of 2012)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN,
COLORADO, AND MILLS & SCHNOERING ARCHITECTS LLC, FOR THE
PURCHASE OF ARCHITECTURAL SERVICES FOR THE WHEELER OPERA HOUSE
BALCONY AND THEATRE TECHNOLOGY REMODEL PROJECT, 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 Mills & Schnoering Architects 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 Mills & Schnoering Architects LLC, regarding
purchase of architectural services for the Wheeler Opera House balcony and theatre
technology capital project, 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: � ► g-
Micha I C. Ireland, May6r
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council of
the City of Aspen, Colorado, at a meeting held December 10, 2012.
z L/0
Kathryn . Koch, City Clerk
TLS CSte of A�pev
AGREEMENT FOR PROFESSIONAL ARCHITECTURAL SERVICES
This Agreement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and MILLS SCHNOERING ARCHITECTS, LLC, Colorado
("Architect").
For and in consideration of the mutual covenants contained herein,the parties agree as follows:
1. Scope of Services. Architect shall perform in a competent and professional manner the
Scope of Services as set forth at Exhibit "A" attached hereto and by this reference incorporated
herein.
2. Completion. Architect shall commence work immediately upon receipt of a written
Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
Upon request of the City, Architect shall submit, for the City's approval, a schedule for the
performance of Architect's services which shall be adjusted as required as the project proceeds, and
which shall include allowances for periods of time required by the City's project engineer for review
and approval of submissions and for approvals of authorities having jurisdiction over the project. This
schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the
Architect.
3. Pam. In consideration of the work performed, City shall pay Architect in an
amount not to exceed Three Hundred Thirteen Thousand Eight Hundred Thirty Five Dollars, in the
event that all Phases are performed as requested by City. The City shall have the option of asking
Architect to perform any number of Phases of the Project. Payment shall be based upon the Fee
Proposal, for phases performed. The City shall notify Architect of phases it wishes to have performed
via formal written Notices to Proceed. Fees including any additional services or reimbursable
expenses shall not exceed the following amounts for each given phase:
Predesign& Planning Phase: $48,780
Schematic Design Phase: $77,400
Construction Document Phase: $80,920
Preconstruction Phase: $25,925
Construction Phase: $52,810
Reimbursables: $28,000
4. Contract Documents. The following documents are agreed to constitute the Contract
Documents. In the event that any provision of one Contract Document conflicts with the provisions of
AG1-981 Page 1 —
another, the provision in the Contract Document listed first below shall govern, except as otherwise
specifically stated:
a. Agreement
b. Request for Proposals& Scope of Services
C. Proposal/Cost estimate and attachments, including all written
representations of Architect
d. Instructions to Proposers
e. Supplemental Conditions, if any
f. City's Standard Terms and Conditions for Professional Architectural Services.
5. Compliance With Procurement Code. The Architect acknowledges that this Agreement
is entered into subject to the requirements of the City of Aspen Procurement Code, Title 4, of the
Aspen Municipal Code. As such, the Architect agrees to comply with all requirements of said
Procurement Code, and such requirements are incorporated herein by this reference (copies of the code
are available upon request to the City for a nominal charge). Architect shall immediately notify the
City Manager in writing of any violation of said Code by the City's employees or agents, which
violation(s) shall be considered a breach of this Agreement. Further, failure to notify the City of any
violation of the Procurement Code shall be deemed as a waiver of any action or defense that the
Architect may have against the City by reason of such violation of the Procurement Code.
6. Non-Assi ng ability. Both parties recognize that this contract is one for specific services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the other.
Sub-Contracting, if authorized, shall not relieve the Architect of any of the responsibilities or
obligations under this agreement. Architect shall be and remain solely responsible to the City for the
negligent acts, errors, and omissions of any of his consultants, agents and employees, each of whom
shall, for this purpose be deemed to be an agent or employee of the Architect to the extent of the
subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which
may be due to any sub-Architect.
7. Termination for Default or for Convenience of City.
a. Termination by City. The performance of services under this Agreement may be
terminated by the City:
1. Whenever the Architect shall default in performance of this Agreement in
accordance with its terms, and fails to cure or show cause why such failure to
perform should be excused within ten (10) days (or longer as the City may allow
or shorter, but not less than three (3) days, for failure to provide proof of
insurance or maintenance of any dangerous condition) after hand-delivery or
mailing to the Architect of a notice specifying the default. If mailed, said notice
shall be sent by certified mail, return receipt requested, to the address specified
herein for Architect.
The Architect shall not be in default be reasons of any failure in performance of
this Agreement in accordance with its terms if such failure arises out of causes
AG 1-981 Page 2
beyond the control and without the fault or negligence of the Architect. Such
causes may include, but are not restricted to, acts of God, natural disasters,
strikes, or freight embargoes, but in every case the failure to perform must be
beyond the control of the Architect. Upon request of the Architect, the City
shall ascertain the facts and failure, and, if the City shall determine that any
failure to perform constituted a valid commercial excuse, the performance shall
be revised accordingly and notice of default withdrawn; or
2. Whenever for any reason and in its sole discretion the City shall determine that
such termination is in its best interest and convenient.
b. Notice of Termination. In the event of termination for the convenience of the City, the
City shall deliver to the Architect a written notice of termination, specifying the reasons
therefor, and the effective date of such termination. The effective date shall not be
earlier than the date of hand-delivery or the date of mailing of the notice, plus three (3)
business days. The notice of termination shall be sent regular first-class mail to the
address of the Architect herein provided. The Architect or the City may terminate this
Agreement, without specifying the reason therefor, by giving notice, in writing,
addressed to the other party, specifying the effective date of the termination. No fees
shall be earned after the effective date of the termination. Upon any termination, all
finished or unfinished documents, data, studies, surveys, drawings, maps, models,
photographs, reports or other material prepared by the Architect shall become the
property of the City. Notwithstanding the above, Architect shall not be relieved of any
liability to the City for damages sustained by the City by virtue of any breach of this
Agreement by the Architect, and the City may withhold any payments to the Architect
for the purposes of set-off until such time as the exact amount of such damages due the
City from the Architect may be determined.
C. Termination Procedure. After the effective date of the notice of termination for default
or for the convenience of the City, unless otherwise directed by the City, the Architect
shall:
1. Stop work under the Agreement on the date specified in the notice of
termination.
2. Place no further orders for materials, services or facilities.
3. Terminate all orders and subArchitects to the extent-that they relate to the
performance of work terminated by the notice of termination.
4. With the approval or ratification of the City, settle all outstanding liabilities and
all claims arising out of such termination on orders or reimbursable in whole or
in part in accordance with this Agreement.
d. Termination Payment. After the effective date of a notice of termination for the
convenience of the City, the Architect shall submit to the City his termination claim in
AG1-981 Page 3 —
the form of a final invoice in accordance with the provisions in Section 3 hereinabove,
including costs incurred and profit to the date of termination (but not for future profit,
which shall not be paid), and costs incurred because of termination, which termination
costs shall not exceed 10% of the total amount of proposal; provided, however, that in
the event of default by the Architect, no extra costs incurred because of termination
shall be paid to the Architect and any costs paid shall not be a waiver of any claim,
counterclaim or setoff by the City against the Architect on account of any default. Such
claim must be submitted promptly, but in no event later than thirty (30) days from the
effective date of termination, unless one or more extensions are granted in writing by
the City. Upon the Architect's failure to submit a claim in the time allowed, the City
may review the information available to it and determine the amount due the Architect,
if any, and pay the Architect the amount as determined.
e. Termination Settlement. Subject to Paragraph 5.d, the Architect and City may negotiate
the whole or any part of the amount or amounts to be paid, upon termination for default
or the convenience of the City.
f. Remedies. The Architect shall have the right of appeal from any determination made by
the City under this termination section; except that if the Architect has failed to submit
his claim within the time provided in Paragraph 5.d, above, and has failed to properly
request an extension, he shall have no right of appeal. In any case where the City has
made a determination of the amount due under Paragraph 5.d. or 5.e., above, the City
shall pay the Architect: (1) the amount the City has determined if there is no right of
appeal or if timely appeal has been taken, or (2) the amount finally determined on such
appeal if an appeal has been taken.
g. Method of Appeal. If the Architect disagrees with the City's determination under
Paragraphs 5.d. or 5.e., he can appeal this decision in writing to the City. Such appeal
must be made in writing within twenty (20) days of receipt in writing of the City's
determination. The City shall have twenty (20) days in which to respond in writing to
the appeal. The City's response shall be final and conclusive unless within thirty (30)
days from the date of receipt of such response the Architect submits the dispute to a
court of competent jurisdiction.
8. Covenant Against Contingent Fees. The Architect warrants that s/he has not employed or
retained any company or person,other than a_bona fide employee working for the Architect, to solicit
or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration
contingent upon or resulting from the award or making of this contract. For a breach or violation of
this contract without liability, or in its discretion to deduct from the contract price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or
contingent fee.
9. Independent Architect Status. It is expressly acknowledged and understood by the parties that
nothing contained in this agreement shall result in, or be construed as establishing an employment
relationship. Architect shall be, and shall perform as, an independent Architect who agrees to use his
AG 1-981 Page 4 —
or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of
Architect shall be, or shall be deemed to be, the employee, agent or servant of the City. City is
interested only in the results obtained under this contract. The manner and means of conducting the
work are under the sole control of Architect. None of the benefits provided by City to its employees
including, but not limited to, workers' compensation insurance and unemployment insurance, are
available from City to the employees, agents or servants of Architect. Architect shall be solely and
entirely responsible for its acts and for the acts of Architect's agents, employees, servants and
subArchitects during the performance of this contract. Architect shall indemnify City 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 or required under unemployment insurance, social
security and income tax law, with respect to Architect and/or Architect's employees engaged in the
performance of the services agreed to herein. ARCHITECT, AS AN INDEPENDENT
ARCHITECT, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS
AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY
MONIES EARNED PURSUANT TO THIS AGREEMENT.
10. Indemnification. Architect agrees to indemnify and hold harmless the City, its officers,
employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage, including claims arising from bodily injury, personal injury,
sickness, disease, death, property loss or damage, which arise out of or are in any manner connected
with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be
caused in whole or in part by, the negligent act, omission, error, Architect error of the Architect, any
subArchitect of the Architect, or any officer, employee, representative, or agent of the Architect or of
any subArchitect of the Architect, or which arises out of any workmen's compensation claim of any
employee of the Architect or of any employee of any subArchitect of the Architect. The Architect
agrees to investigate, handle, respond to, and to provide defense for and defend against, any such
liability, claims or demands at the sole expense of the Architect, or at the option of the City, agrees to
pay the City or reimburse the City for the defense costs incurred by the City in connection with, any
such liability, claims, or demands. The Architect also agrees to bear all other costs and expenses
related thereto, including court costs and attorney fees, whether or not any such liability, claims, or
demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment of a
court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the
act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the
Architect for the portion of the judgment attributable to such act, omission, or other fault of the City,
its officers, or employees.
11. Architect's Insurance. (a) Architect agrees to procure and maintain, at its own expense,
a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other
obligations assumed by the Architect pursuant to Section 8 above in amounts and aggregates as stated
below. Such insurance shall be in addition to any other insurance requirements imposed by this
contract or by law. The Architect shall not be relieved of any liability, claims, demands, or other
obligations assumed pursuant to Section 6 above by reason of its failure to procure or maintain
insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration,
or types.
AG1-981 Page 5 —
(b) Architect shall procure and maintain, and shall cause any subArchitect of-the-Architect to
procure and maintain, the minimum insurance coverages listed below. Such coverages shall be
procured and maintained with forms and insurance acceptable to the City. All coverages shall be
continuously maintained to cover all liability, claims, demands, and other obligations assumed by the
Architect pursuant to Section 8 above. In the case of any claims-made policy, the necessary
retroactive dates and extended reporting periods shall be procured to maintain such continuous
coverage.
(i) Workmen's Compensation insurance to cover obligations imposed by applicable
laws for any employee engaged in the performance of work under this contract, and Employers'
Liability insurance with minimum limits of no less than the state of Colorado statutory
minimums. Evidence of qualified self-insured status may be substituted for the Workmen's
Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single limits
of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) each occurrence and SIX
HUNDRED THOUSAND DOLLARS ($600,000.00) aggregate. The policy shall be applicable
to all premises and operations. The policy shall include coverage for bodily injury, broad form
property damage (including completed operations), personal injury (including coverage for
contractual and employee acts), blanket contractual, independent Architects, products, and
completed operations. The policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined single
limits for bodily injury and property damage of not less than THREE HUNDRED
THOUSAND DOLLARS ($300,000.00) each occurrence and THREE HUNDRED
THOUSAND DOLLARS ($300,000.00) aggregate with respect to each Architect's owned,
hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The
policy shall contain a severability of interest provision. If the Architect has no owned
automobiles, the requirements of this Section shall be met by each employee of the Architect
providing services to the City under this contract.
(iv) Architect Liability insurance with the minimum limits of TWO HUNDRED
FIFTY THOUSAND DOLLARS ($250,000) each claim and TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000) aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that provided
by Architect. No additional insured endorsement to the policy required above shall contain any
exclusion for bodily injury or property damage arising from completed operations. The Architect shall
be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the Architect's
insurance agent as evidence that policies providing the required coverages, conditions, and minimum
limits are in full force and effect, and shall be reviewed and approved by the City prior to
AG 1-981 Page —
commencement of the contract. No other form of certificate shall be used. The certificate shall
identify this contract and shall provide that the coverages afforded under the policies shall not be
canceled, terminated or materially changed until at least thirty (30) days prior written notice has been
given to the City.
(e) Failure on the part of the Architect to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of contract upon
which City may immediately terminate this contract, or at its discretion City may procure any such
policy or any extended reporting period thereto and may pay any and all premiums in connection
therewith, and all monies so paid by City shall be repaid by Architect to City upon demand, or City
may offset the cost of the premiums against monies due to Architect from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per
person and $600,000 per occurrence) or any other rights, immunities, and protection provided by the
Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time
amended, or otherwise available to City, its officers, or its employees.
12. City's Insurance. The parties hereto understand that the City is a member of the
Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and are available to Architect for inspection during normal business hours. City
makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall
provide Architect reasonable notice of any changes in its membership or participation in CIRSA.
13. Exemption From Sales and Use Taxes. All purchases of construction, building or other
materials for any agreement shall not include Federal Excise Taxes or Colorado State or local sales or
use taxes. City is exempt from such taxes under applicable federal, state and local laws. Owner's
State of Colorado tax identification number is 98-04557. City's Federal Tax Identification Number is
84-6000563.
14. Ownership of Design Materials and Documents.
a. The copies or other tangible embodiments of all design materials, whether or not such
materials are subject to intellectual property protection, including but not limited to
documents, shop drawings, computer programs developed for the Project or if such
programs are not the property of Architect or SubArchitect, data, plans, drawings,
sketches, illustrations, specifications, descriptions, models, as-built documents, and any
other documents developed, prepared, furnished, delivered or required to be delivered
by the Architect or SubArchitect to City under the Contract Documents (collectively
"Design Materials") shall be and remain the property of the City whether or not the
Project is commenced or completed; provided, however, that City makes payment for
the documents in accordance with this Agreement. During the term of the Agreement,
AG1-981 Page 7
the Architect shall be responsible for any loss or damage to the Design Materials, while
the Materials are in the possession of the Architect or any of its SubArchitects, and any
such Design Materials lost or damaged shall be replaced or restored at the Architect's
expense. The intellectual property rights, if any, to the contents of or concepts
embodied in the Design Materials shall belong to the Architect or its Design
SubArchitects in accordance with their contractual relationship and may be copyrighted
by them in the United States or in any other country, or be subject to any other
intellectual property protection.
b. As to those Design Materials subject to copyright or as to which patent or trademark, or
any other form of intellectual property protection has been, is or will be obtained, the
Architect grants to City as of the date that the Design Materials are delivered or
required to be delivered to the City, a world-wide, paid-up, nonexclusive,
nontransferable (except as provided) license for the term of intellectual property
protection, for the City to use, reproduce and have reproduced, display and allow others
to display and to publish and allow others to publish, in any manner, at any time and as
often as it desires, with or without compensation to the Architect or any third party
subject to the following restrictions: (a) All copyright and other intellectual proprietary
rights in or relating to any of the Design Materials, shall remain the property of the
Architect or Design SubArchitect whether or not the Project is constructed. It is
understood that, except as provided in this paragraph, the Architect and Design
SubArchitect shall have the right to use any detail, part, concept or system(s) shown on,
specified in, or inferable from the Design Materials on any other project and to retain
copies for the Architect's or Design SubArchitect's future use; (b) City shall not,
without prior written consent of the Architect or Design SubArchitect use Design
Materials or documents, in whole or in part, for the construction of any other project.
If, however, City agrees to indemnify the owner of the intellectual property rights
against liability arising from the misuse or incorrect use of Design Materials by City,
City shall be entitled to, at no additional cost to the City, use such materials and
documents for additions, improvements, changes or alterations to the Project after
completion. If Architect is in default under this Contract and the Contract is terminated,
City shall be entitled to use the Design Materials for completion of the Project by others
without additional compensation, or a release, indemnification or other action by City;
(c) Any reproduction of the Design Materials or part of them shall be faithful and
accurate to the original and of good quality; (d) City shall not remove or alter, and shall
reproduce and prominently display on all copies made by City, the copyright notice and
other proprietary legends appearing on the Design Materials when delivered to City.
The restrictions set forth in (c) and (d) above shall be imposed by City on any third
party to whom the City allows to display or publish the Design Materials.
C. It is understood that City considers the Project's aggregate architectural expression (that
is, the overall combination of the Project's visually apparent design features) and any
distinctive individual features, to be unique and of commercial value, and the Architect
and its Design SubArchitects agree not to design or build, or allow other third parties
the use of the Design Materials to design or build another structure(s) having a
substantially similar architectural expression so that an average person would relate the
AG1-981 Page 8 —
structure(s) to the Project. Architect and its Design SubArchitects shall, however, be
free to use individual features from the Project or combinations of features in other
projects, so long as the Architect complies with the first sentence of this paragraph.
Architect shall include this provision in its contracts with its Design subArchitects and
provide copies of these agreements to City.
d. As of the conclusion of the Project, or in the event of termination of the Agreement,
Architect shall turn over to City any of the Design Materials referred to in above which
have not yet been submitted to City. Architect shall submit the Design Materials to
City within ten days of the conclusion of the project, or date of termination. In the
event of the failure by Architect to make such delivery as provided above, Architect
shall pay City any damages City may sustain from the failure.
15. Annual Appropriations. If the Agreement awarded as a result of a bid or request for
proposals extends beyond the calendar year, nothing herein shall be construed as an obligation by the
City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis.
It is understood that payment under any agreement is conditional upon annual appropriation of funds
by said governing body and that before providing services or materials for which funds have not been
appropriated.
16. Completeness of Agreement. It is expressly agreed that this agreement contains the
entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
17. Notice. Any written notices as called for herein may be hand delivered to the respective
persons and/or addresses listed below or mailed by certified mail return receipt requested,to:
City: Architect:
City of Aspen Mills Schnoering Architects LLC
130 South Galena Street 200 Forrestal Road, Suite 3A
Aspen, Colorado 81611 Princeton,NJ 08540
18. Non-Discrimination; penalty. No discrimination because of race, color, creed, sex,
marital status, affectional or sexual orientation, family responsibility, national origin, ancestry,
handicap, or religion shall be made in the employment of persons to perform services under this
contract. Architect agrees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
19. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of this Agreement can be waived except by the written consent of the City, and forbearance
or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant,
or condition to be performed by Architect to which the same may apply and, until complete
performance by Architect of said term, covenant or condition, the City shall be entitled to invoke any
remedy available to it under this Agreement or by law despite any such forbearance or indulgence.
AGI-981 Page 9 —
20. Execution of Agreement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this agreement shall not be binding upon the City unless
duly executed by the City Manager or Mayor of the City of Aspen (or a duly authorized official in his
absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the City
Manager or Mayor(or duly authorized official in his absence)to execute the same.
21. Illegal Aliens—CRS 8-17.5-101 & 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 06-1023 that added new statutes relating to
the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and
political subdivisions, including the Owner, from knowingly hiring an illegal alien to perform work
under a contract, or to knowingly contract with a Architect who knowingly hires with an illegal alien
to perform work under the contract. The new laws also require that all contracts for services include
certain specific 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.
1. "E-verify program" means the electronic 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.
2. "Department program"means the employment verification program established
pursuant to Section 8-17.5-102(5)(c).
3. "Public Contract for Services" means this Agreement.
4. "Services"means the furnishing of labor,time, or effort by a Architect or a
subArchitect not involving the delivery of a specific end product other than reports that are
merely incidental to the required performance.
C. By signing this document, Architect certifies and represents that at this time:
1. Architect shall confirm the employment eligibility of all employees who are
newly hired for employment to perform work under the public contract for services; and
2. Architect has participated or attempted to participate in either the e-verify
program or the department program in order to verify that new employees are not illegal aliens.
d. Architect hereby confirms that:
AG1-981 Page 10
I. Architect shall not knowingly employ or contract with an illegal alien to
perform work under the Public Contract for Services.
2. Architect shall not enter into a contract with a subArchitect that fails to certify to
the Architect that the subArchitect shall not knowingly employ or contract with an illegal alien
to perform work under the Public Contract for Services.
3. Architect has confirmed the employment eligibility of all employees who are
newly hired for employment to perform work under the public contract for services through
participation in either the e-verify program or the department program.
4. Architect 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
Contract for Services is being performed.
5. If Architect obtains actual knowledge that a subArchitect performing work
under the Public Contract for Services knowingly employs or contracts with an illegal alien,
Architect shall:
i. Notify such subArchitect and the Owner within three days that Architect
has actual knowledge that the subArchitect is employing or subcontracting with an
illegal alien; and
ii. Terminate the subcontract with the subArchitect if within three days of
receiving the notice required pursuant to this section the subArchitect does not stop
employing or contracting with the illegal alien; except that Architect shall not terminate
the Public Contract for Services with the subArchitect if during such three days the
subArchitect provides information to establish that the subArchitect has not knowingly
employed or contracted with an illegal alien.
6. Architect shall comply with any reasonable request by the Colorado Department
of Labor and Employment made in the course of an investigation that the Colorado Department
of Labor and Employment undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
7. If Architect violates any provision of the Public Contract 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 is so terminated, Architect shall be liable for actual damages
to the Owner arising out of Architect's violation of Subsection 8-17.5-102, C.R.S.
22. General Terms.
(a) It is agreed that neither this agreement nor any of its terms, provisions,
conditions, representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
AG 1-981 Page 11
(b) If any of the provisions of this agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution hereof
and that after execution no alteration, change or modification shall be made except upon a writing
signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as from
time to time in effect.
AG1-981 Page 12 —
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on the
date hereinafter written.
Dated:
ATTESTED BY: CITY OF ASPEN, COLORADO:
.. By;
ARCHITECT:
WITNESSED BY:
By: AIA
APPROVED AS TO FORM BY: REVIEWED BY:
ity Attorney Project Manager
Exhibit A to City of Aspen AGREEMENT FOR PROFESSIONAL ARCHITECTURAL SERVICES
AG1-981 Page 13
Scope of Work
All work performed by the successful proposer must conform to all applicable laws, ordinances and codes in the
design and construction phases. All approvals for the entire project, including budgetary authority and design
sign-off, reside with Aspen City Council. The work to be performed is as follows:
(1) PREDESIGN/PLANNING PHASE
1. General Requirements: Preliminary designs must meet the approval of the Client and City.
User group awareness of and support for the project is also imperative to the success of the
project. Once the design is approved, final drawings and detailed specifications will be
developed for use by the General Contractor At Risk (CIVIC) for finalization of budget and
construction schedule development.
2. Pre-Design Phase Duration:
Pre-Design Phase is for a period of approximately six weeks, during which time the
selected proposer should complete all investigation of the physical areas in their present
condition, including structural probing (including selective demolition, assisted by Wheeler
staff), in order to complete an informed and implementable design.
a. The proposer should fully review the document "Balcony and Auditorium
Rehabilitation — Feasibility Study" dated August 30, 2012 and available on the
Purchasing website. This document was prepared in order to fairly assess the
possible scope of work and overall budget determination for this project. Wheeler
and City Asset Management staff neither accepts or reject any of the possible
design directions given in the study and suggest that the Feasibility Study is for
consideration purposes only.
3. The successful proposer shall be responsible for developing and distributing meeting
agendas and notes for both internal and community meetings.
(2) DESIGN PHASE:
1. Design Phase Duration:
The Design Phase should target a maximum period of 120 Days inclusive of reviews and
approvals by Client,the Wheeler Board of Directors, and Aspen City Council.
2. Design Priorities: Priorities for the design of the scope of work shall be as follows:
a. Providing a seated balcony consistent with the needs of 215` Century patrons in
terms of row depth, height, and width, keeping in mind the Wheeler's need to
maintain seating capacity in either the balcony or orchestra levels. In order to
provide such seating, the design should take into account a reduced technical
booth, reduction of existing aisles, likely removal of one row of existing seating, and
minor modification of the deep bow of the balcony.
b. Providing a comprehensive upgrade to all technical infrastructure presently located
in the Wheeler technical booth and attic areas, modifications as needed to the
orchestra sound booth area, and replacement of current 35mm film exhibition
technology with new Digital Cinema Projection (DCP) technology. The inclusion of
a new media desk, with the ability to monitor and record for a minimum of two fixed
camera points and two roving cameras, should be included in either the balcony
booth area or through modification of the orchestra-level sound booth. Emphasis
on replacement of all infrastructure technologies shall be two-fold: First, to be
forward-thinking and anticipate future changes to technology, and second to
replace such infrastructure with new, energy-efficient, and as applicable "green"
technology.
c. A third priority is to take advantage of the audience chamber being available for an
extended period to improve, correct, or otherwise enhance the patron experience
through improvements to the Wheeler's general audience lighting, life safety
technology, or other areas as identified. All work must be conducted simultaneous
to, and not interfere with, the first and second priorities as noted above, and in no
way compromise meeting the challenging timeframe allowable for total work on the
AG1-981 Page 14 —
project.
3. Design Team Leadership:
The selected proposer shall also at this time secure all creative members of the team for
their individual services, and be able to supply Client with a well-thought-out and
implementable timeline for project implementation and completion, including any and all
time contingencies necessary to complete the project on or ahead of schedule.
4. Management Team Meetings:
The successful proposer shall participate in regular meetings (either in person or through
electronic media) with representatives of the Client to discuss the overall progress of the
project. Proposer will also maintain Project Status Report including action items for follow
up.
5. Special Meetings:
The successful proposer shall attend meetings with the Wheeler Board of Directors,
appropriate departments of the City of Aspen, and City Council as required for reviews and
approvals. Facilitation and Documentation:
6. The successful proposer shall be responsible for developing and distributing meeting
agendas and notes for both internal and community meetings.
The successful proposer shall also coordinate designs and all drawings for the design team and
shall attend regular meetings with advisory boards, as required for approvals.
(3) IPD MODEL AND SELECTION OF GENERAL CONTRACTOR AT RISK: Proposer understands
that the Wheeler, as part of the City of Aspen, will subject this project to the Integrated Project Delivery
(IPD) model, which will involve soliciting for and bringing onto the project in late 2012 or early 2013 a
selected General Contractor At Risk (CIVIC). The CIVIC solicitation shall take place on or about the start
of 2013, and upon selection the CIVIC will become an integral partner in the final design and costing of
the project. The project will be overseen in its entirety by a member of the City's Asset Management
department, who will be the person with final authority once the final design and schedule of the project
are approved.
(4) FINAL PLANNING, PERMITTING,AND PREPARATORY WORK:
Assuming that all work described in (2) above is completed by April 30, 2013, the successful proposer
shall immediately work to complete all applicable contract document sets of site, floor, structural,
electrical, and mechanical plans, details and specifications, including the general requirements, project
manual, and construction management requirements. The construction management plan must be
comprehensive in addressing impacts to transportation and transit, neighboring commercial and
residential uses, and use of the Wheeler Opera House during construction.
The period between May 1 and August 31 is intended to be dedicated to completion of all final planning,
including attainment of all necessary permits and exterior setup for construction staging, etc. Wheeler
staff will be responsible in the week prior to the start of construction (determined as Tuesday,
September 3, 2013)for the safe removal and storage of the existing orchestra-level theatre seating, and
any other mutually-agreeable theatre chamber preparatory work that will allow the construction team to
more quickly begin demolition on the start date.
(5) CONSTRUCTION: The construction period is from Tuesday, September 3, 2013, to Thursday,
December 19, 2013. This is an absolute window of time; no extensions can be granted. The
successful proposer should consider front-loading the construction window for extended-shift or double-
shift work in order to more confidently meet the construction deadline.
AG 1-981 Page 15 —