HomeMy WebLinkAboutresolution.council.077-03 RESOLUTION NO. ~ Series of 2003
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A PART 2
AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND ASW BURLINGAME
PARCEL D LLC, 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 a Pan 2 Agreement between the
City of Aspen, Colorado and ASW Burlingame Parcel D LLC, a copy of which contract is armexed
hereto and made a pan 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 a Pan 2 Agreement between the
City of Aspen, Colorado and ASW Burlingame Parcel D LLC, 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: ~~~,~
Helefi K~lin K'7/~de~d, ~la~
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 ~'~5~ oQ_~--,2003.
rathr,~ ~. ~ch, City Clerk ~'
JPW- 08/04/2003 -G: k j ohn~word~resos~Burlin~ame- Parcel-D. doc
Part 2 Agreement Between City of Aspen and Developer
~itT ~rnef'~ O~li~e
This Agreement, made and entered into on August 25, 2003, by and between the CITY OF
ASPEN, 130 S. Galena Street, Aspen, Colorado 81611, hereinafter called the "City", and
Developer:
ASW Burlingame Parcel D LLC
c/o Vincent Hooper
Planner/Developer Manager
P.O. Box 770720
Steamboat Springs, CO 80477
For the following project:
Burlingame Parcel D
Legal: Budingame Ranch Subdivision, Lot 3
Description: 40 one-bedroom affordable housing units ,
Location: Airport Business Center-
Off of Ventnor Ave., between the old Federal Express Building and Qwest
Telecommunications
The architectural services described herein shall be provided by the following person or entity
who is lawfully licensed to practice architecture:
(Name and address) (Registration Numbed (Relationship to Developed
Cottle, Graybeal and Yaw Architects, LTD
c/o Doug Graybeal
228 Midland Avenue
Basalt, CO 81621
The planning services described herein shall be provided contractually through the Architect
except as indicated below:
(Name and address) (Registration Numbed (Relationship to Developer)
Design Workshop, Inc. Not Applicable Dvpmnt. Team Member
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Normal structural, mechanical and electrical engineering services shall be provided
contractually through the Architect except as indicated below:
(Name and address) (Registration Number) . (Relationship to Developer)
Structural Engineer:
Monroe & Newell Engineers, Inc,
Hannes Spaeh, P.E. PE # 26799, Colorado Dvpmnt. Team Member
Peter D. Monroe PE # 12082, Colorado Dvpmnt. Team Member
Mechanical & Electrical Engineer:
Beaudin Ganze
Tyler Seals, P.E. PE #-34250 Dvpmnt. Team Member
Dan Koelliker, P.E. PE # 35218 Dvpmnt. Team Member
The construction services described herein shall be provided by the following person or entity:
R.A. Nelson & Associates, Inc.
The City of Aspen and Developer agree as set forth below:
ARTICLE 1
DEFINITIONS
1.1. ~Whenever the words, forms, or phrases defined herein, or pronouns used in their place
occur in the Contract Documents, the intent and meaning shall be interpreted as follows:
ASCE American Society of Civil Engineers
NACE National Society for Corrosion Engineers
SSPC Special Society for Paint Council
AASHTO American Association of State Highway and Transportation Officials
AIA American Insurance Association
SICS American Institute of Steel Construction
AISI American Iron and Steel Institute
ANSI American National Standards Institute (formerly ASA and USASI)
ASME American Society of Mechanical Engineers
ASTM American Society for Testing and Materials
AWG American Wire Gauge
AWS American Welding Society
BAFO Best and Final Offer
CDOT Department of Transportation, State of Colorado
O&M Operations and Maintenance
DHA Detailed Hazards Analysis
EBD Escrow Bid Documents
EIA Electronic Industries Association
EPA United States Environmental Protection Agency
FCC Federal Communications Commission
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FHWA Federal Highway Administration
FTA Federal Transit Administration
HVAC Heating, Ventilation, and Air Conditioning
NBS National Bureau of Standards
NEC National Electdc Code
NTP Notice to Proceed
NESC National Electric Safety Code
NFPA National Fire Protection Association
OSHA Occupational Safety and Health Administration
PHA Preliminary Hazards Analysis
SAE Society of Automotive Engineers
UL Underwdter's Laboratories, Inc.
UMTA United States Department of Transportation, Urban Mass Transportation Authority
UD&FCD Urban Drainage and Flood Control District
MUTCD Manual on Uniform Traffic Control Devices
1.2, Wherever used in this Agreement or in the other Contract Documents the following terms
have the meanings indicated which are applicable to both the singular and plural thereof:
Addenda - Written or graphic instruments issued prior to the opening of Proposlas which cladfy,
correct or change the bidding dOCuments, Contract Documents, drawings, details or specifications.
Addenda also refers to City approved changes to Developer's Proposal submitted to City as part of
the Part One Agreement.
Bonds - Performance, payment, maintenance bonds and other acceptable instruments of
financial security, furnished by the Developer and his/her surety in accordance with the Contract
Documents.
Change Order - A written order to the Developer authorizing an addition, deletion or revision in the
Work within the general scope of the Contract Documents, or authorizing an adjustment in the
Contract Pdce or Contract Time, issued on or after the Effective Date of this Part 2 Agreement.
City or Owner - The City of Aspen in Pitkin County, Colorado.
Contract - All contract documents referenced by this Agreement and made a part herein.
Contract Documents - The Contract Documents which compdse the entire agreement between
the City and Developer consist of the following:
1. This Part 2 Agreement.
2. Exhibits / Addendum to this Part 2 Agreement. (pages P293 to P319, inclusive)
3. All deliverables provided by Developer to City in accordance with the Part 1
Agreement, including, but not limited to, those deliverables identified as part of the
Basic Services, including Developer's Proposal.
4. Developer's Proposal in response to City's Request for ProposalS, including the
Statement of Qualifications, etc.
5. Notice of Award.
6. Notice to Proceed.
7. Special Conditions.
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8. Technical Specifications and Drawings.
9. Addendum No,
10. All wdtten amendments to this Part 2. Agreement, including Change Orders.
11. Payment, performance, and maintenance bonds.
Contract Price. The moneys payable by the City to the Developer under the Contract Documents
as stated in this Agreement, except for the Minor Contract Revisions item(s) which are subject to
the City's written authorization for expenditure.
Contract Time - The number of the consecutive calendar days or the working days and/or the
deadline set in the Contract Documents for the completion of the Work.
Daily Construction Log - The form furnished by the City and used b'y the City's Representative to
record the Developer's daily work quantities and project events. Daily construction Icg is the only
verified justification for payment to the Developer.
Defective - An adjective which when modifying the word Work refers to Work that is unsatisfactory,
faulty or deficient, or does not conform to the Contract Documents, or does not meet the
requirements of any inspection, reference standard, test or approval referred to in the Contract
Documents, or has been damaged prior to the City's Representative's recommendation of final
payment (unless responsibility for the protection thereof has been assumed by the City at
Substantial Completion in accordance with paragraph 14.5 or 14.6).
Developer - The qualified responsible and responsive firm or corporation with whom the City has
entered into the Part 1 and/or Part 2 Agreement.
Drawings - The part of the Contract Documents which show the character and scope of the Work
to be performed and which have been prepared or approved by the City.
Effective Date of the Agreement - The date indicated in this Agreement on which it becomes
effective.
Field Order - A written order affecting a change in the Work not involving an adjustment in the
Contract Time, issued by the City to the Developer during construction.
Hazardous Materials - The term "Hazardous Materials" shall have the meaning set forth at 42
U.S.C. ' 9601(14) and regulations promulgated pursuant thereto.
Laws and Regulations; Laws or Regulations - Laws, rules regulations, ordinances, procurement
code and/or orders.
Notice of Award - The written notice by the City to the Developer stating that upon compliance by
the Developer with the conditions precedent enumerated therein, within the time specified, the City
will sign and deliver this Agreement.
Notice to Proceed - A written notice given by the City to the Developer fixing the date on which
the Contract Time will commence to run and on which Developer shall start to perform Developer's
obligations under the Contract Documents.
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Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended
(or a related purpose) before reaching Substantial Completion for all the Work.
Procurement Code - Title 4 of the City of Aspen Municipal Code.
Progress Pay Estimate o The form furnished by the City, which is to be used to record, approve,
and process payment when the Developer requests progress or final payments and which is to
include such supporting documentation as is required by the Contract Documents.
Project - The total construction of which the Work to be provided under the Contract Documents
may be the whole, or a part as indicated elsewhere in the Contract Documents.
Proposer - Any qualified responsible and responsive firm or corporation submitting a Proposal in
response to the City's Request for Proposals.
Punch List - A form or letter that lists all incomplete or deficient Bid items, and is prepared upon
substantial completion of the Work by the City.
Shop Drawings o All drawings, diagrams, illustrations, brochures, schedules and other data which
are specifically prepared by or for the Developer and the sub-Contractor to illustrate some portion
of the Work and all illustrations, brochures, standard schedules, performance charts, instructions,
diagrams and other information prepared by a Supplier and submitted by the Developer and the
Sub-Contractor to illustrate material or equipment for some portion of the Work.
Specifications - Those portions of the Contract Documents consisting of written technical
descriptions of materials, equipment, construction systems, standards and workmanship as
applied to the Work and certain administrative details applicable thereto.
Subcontractor - A firm or corporation having a direct contract with the Developer or with any other
Sub-Contractor for the performance of a part of the Work at the site.
Substantial Completion - The Work (or a specified part thereof) has progressed to the point
where, in the opinion of the City as evidenced by the CitY's acceptance, is sufficiently complete, in
accordance with the Contract Documents, so that the Work can be utilized for the purposes for
which it is intended. The terms "substantially complete" and "substantially completed" as applied
to any Work refer to Substantial Completion thereof. The term Substantial Completion shall mean
one hundred percent (100%) completion of the Work or a Certificate of Occupancy is awarded.
Special Conditions or Special Provisions. The part of the Contract Documents which amends
or supplements this Part 2 Agreement.
Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor who supplies
materials or equipment for the Work including that fabricated to a special design but who does not
perform labor at the site.
Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks,
tunnels or other such facilities or attachments, and any encasements containing such facilities
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which have been installed underground to furnish any of the following services for materials;
electricity, gases, steam, liquid petroleum products, telephone or other communications, cable
television, water, wastewater and surface runoff removal, traffic or other control systems.
Unit Price Work - Work to be paid for on the basis of unit pdces.
Work - The services provided by the Developer and the entire completed construction or the
various separately identifiable parts thereof required to be furnished under the Contract
Documents. Work is the result of performing services, fumishing labor and furnishing and
incorporating materials and equipment into the construction, all as required by the Contract
Documents and those not specifically mentioned but necessary for successful completion of the
Bid items.
Written Notice or Written Notice of Amendment - A written amendment of the Contract
Documents, signed by the City and the Developer on or after the Effective Date of this Part 2
Agreement and normally dealing with the non-engineering or non-technical rather than strictly
Work-related aspects of the Contract Documents
ARTICLE 2
PRELIMINARY MATTERS
2.1 Delivery of Bonds:
When Developer delivers the executed Contract Documents to the City, the Developer shall also
deliver such Bonds as the Developer is be required to furnish in accordance with paragraph 5.1.
2.2 Copies of Documents:
The City shall furnish to the Developer up to three copies (unless otherwise specified in the Special
Conditions) of the Contract Documents as are reasonably necessary for the execution of the Work.
Additional copies will be furnished, upon request, at the cost of reproduction.
2.3 Commencement of Contract Time, Notice to Proceed:
Prior to the City issuing a Notice to Proceed, the City of Aspen City Council shall approve the
Contract Documents and either the City manager or the Mayor shall execute the same.
Notwithstanding any representations to the contrary made by City's employees, either directly,
indirectly, or by implication, no Contract shall De in effect nor shall be binding upon the City until
such time as the Contract is executed by the City pursuant to authority granted in accordance with
Section 4-08-040 of the Procurement Code. The City shall issue a Notice to Proceed after (a) the
City Council has approved the Contract Documents and (b) the City Manager or Mayor has
executed this Part 2 Agreement, and (c) the Developer has executed this Part 2 Agreement and
other Contract Documents, and has delivered the specified bonds, Certificates of Insurance, as are
required, and any other documents required to be delivered by the Special Conditions and
Addenda(s), if any issued. The Contract Time will commence to run on the day indicated in the
Notice to Proceed.
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2.4 Starting the Project:
The Developer shall start to perform the Work on the date when the Contract Time commences to
run, but no Work, except for Work covered by the Part 1 Agreement, shall be done at the site prior
to the date on which the Contract Time commences to run and pdor to a mandatory pre-
construction conference conducted by the City.
2.5 Before starting the Project:
Before undertaking each part of the Work, the Developer shall carefully study and compare the
Contract Documents and check and vedfy pertinent figures shown thereon and all applicable field
measurements. The Developer shall promptly report in writing to the City any conflict, error or
discrepancy which Developer may discover and shall obtain a written interpretation or clarification
from the City before proceeding with any Work affected thereby.
2.5.1. Within three days after the Effective Date of this Part 2 Agreement (unless otherwise
specified in the Special Conditions), the Developer shall submit to the City for review:
2.5.1.1. An estimated progress schedule indicating the starting and completion dates of
the various stages of the Work;
2.5.1.2. A preliminary schedule of Shop Drawing submissions; and
2.5.1.3. Quality Control and Quality Assurance (QA/QC) plan and policy to identify the
specific steps the Developer will take to ensure the highest quality in the
constructed items.
2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action
process.
2.5.2. Before any Work under this Part 2 Agreement at the site is started, the Developer shall
deliver to the City, copies of certificates (and other evidence of insurance requested by the City)
which the Developer is required to purchase and maintain.
2.6 Pre-construction Conference:
Within seven (7) consecutive calendar days after the effective date of the Notice to Proceed, and
before the DeVeloper starts the Work at the site, he/she and all of his/her subcontractors and
suppliers shall attend a mandatory pre-construction conference, conducted by the City and others
as appropriate to discuss coordination of construction activities, procedures for handling Shop
Drawings and other issues, and to establish a working understanding among the parties as to the
Work.
2. 7' Project Progress Meetings
The City and the Developer shall meet once a week to review the construction activities, rate of
progress, and other project related issues to ensure efficient and smooth progress of work.
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ARTICLE 3
CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.1 Intent:
The Contract Documents comprise the entire agreement between the City and the Developer
concerning the Work. The Contract Documents are complementary; what is called for by one is as
binding as if called for by all. The Contract Documents will be construed in accordance with the
law of the State of Colorado.
3.1.1. It is the intent of the Contract Documents to describe a functionally complete Project (or part
thereof) to be constructed in accordance with the Contract Documents. Any Work, materials or
equipment that may reasonably be inferred from the Contract Documents as being required to
produce the intended result will be supplied whether or not specifically called for. When words
which have a well-known technical or trade meaning are used to describe Work, materials or
equipment, such wordS shall be interpreted in accordance with that meaning. Reference to
standard specifications, manuals or codes of any technical society, organization or association, or
to the Laws or Regulations of any governmental authority, whether such reference be specific or by
implication, shall mean the latest standard specification, manual, code or Laws or Regulations in
effect on the effective date of this Part 2 Agreement except as may be otherwise specifically stated.
However, no provision of any referenced standard specification, manual or code (whether or not
specifically incorporated by reference in the Contract Documents) shall be effective to change the
duties and responsibilities of the City or the Developer, or any of their consultants, agents or
employees from those set forth in the Contract Do~cuments, nor shall it be effective to assign to the
City, or any of the City's consultants, agents or employees, any duty or authority to supervise or
direct the furnishing or performance of the Work, or any duty or authority to undertake responsibility
contrary to the provisions of Article 9. Clarifications and interpretations of the Contract Documents
shall be issued by the City as provided in section 9.4.
3.1.2. If, during the performance of the Work, Developer finds a conflict, error or discrepancy in the
Contract Documents, the Developer shall so report to the City in writing at once and before
proceeding with the Work affected thereby and shall obtain a written interpretation or clarification
from the City.
3.1.3. Jf the Developer believes or is advised by the Amhitect or by another design professional
retained to provide services on the Project that implementation of any instruction received from the
City would cause a violation of any applicable law, the Developer shall notify the City in writing.
Neither the Developer no the Architect shall be obligated to perform any act which either believes
will violate any laws.
3.1.4. Nothing contained in the Part 2 Agreement shall create a contractual relationship between
the City and any person or entity other than the Developer.
3.2 Amending and Supplementing Contract Documents:
The Contract Documents may be amended to provide for additions, deletions and revisions in the
Work or to modify the terms and conditions thereof in one or more of the following ways:
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3.2.1. A formal Amendment of this Part 2 Agreement;
3.2.2. A Change Order pursuant to paragraph 10.3. As indicated in Article 11 Contract Pdce and
Contract Time may only be changed by a Change Order or a Written Notice of Amendment.
3.2.3. In addition, the requirements of the Contract Documents may be supplemented, and minor
variations and deviations in the Work may be authorized, in one or more of the following ways:
3.2.3.1. A Field Order (pursuant to paragraph 9.5);
3.2.3.2. The City's written interpretation or clarification (pursuant to paragraph 9.4).
3.3 Precedence of Contract Documents:
In the event of discrepancies or conflicts between the various components of the Contract
Documents, the order of precedence shall be as follows:
1. Change Order, Work Change Directives, or formal wdtten Amendment to this Part 2
Agreement.
2. Drawings:
a. Detailed drawings.
b. Standard drawings.
3. Technical Specifications.
4. Special Conditions.
5. Part 2 Agreement
6. Developer's Proposal and Addenda (approved by City) submitted as part of the Part
1 Agreement.
7. Developer's submittals as part of the Part 1 Agreement.
3.4. Ownership of Design Materials and Documents:
3.4.1. 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 Developers the results of the use of them by Developer, data, plans, drawings,
sketches, illustrations, specifications, descriptionS, models, the Design Documents, as-built
documents and any other documents developed, prepared, furnished, delivered or required to be
delivered by the Developer to City under the Contract Documents (collectively "Design Materials")
shall be and remain the property of the City whether or not the Project or Work is commenced or
completed; provided, however, that City makes payment for the documents in accordance with the
Contract Documents. During the term of the Agreement, the Developer shall be responsible for any
loss or damage to the Design Materials, while the Materials are in the possession of the Developer
or any of its Subcontractors, and any such Design Materials lost or damaged shall be replaced or
restored at the Developer's expense. The intellectual property rights, if any, to the contents of or
concepts embodied in the Design Materials shall belong to the Developer or its Design
Subcontractors in accordance with their contractual relationship and may be copyrighted by them
~)B4-03.doc *'DB4 Page 9
in the United States or in any other country, or be subject to any other intellectual property
protection.
3.4.2. 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 er will be Obtained, the Developer 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 Developer 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 Developer or Design Subcontractor
whether or not the Project is constructed. It is understood that, except as provided in this
paragraph, the Developer and Design Subcontractor shall have the right to use any detail, part,
concept or system(s) shown on, specified in, or inferable from the Design Materials on any other
project and to retain copies for the Developer's or Design Subcontractor's future use; (b) City shall
not, without prior written consent of the Developer or Design Subcontractor use Design Materials
or documents, in whole or in part, for the construction of any other project. If, however, City agrees
to indemnify the Developer and 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 Developer 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. If the City should use any of the information or plans described herein on an
other project or site, the Developer or its Design Subcontractors shall not be held responsible for
any liability that might result from the City using and/or transferring such information.
3.4.3. 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 Developer and its Design
Subcontractors agree not to design or build, or allow other third parties the use of the Design
Materials to design or build another structure(s) having a substantially similar architectural
expression so that an average person would relate the structure(s) to the Project. Developer and
its Design Subcontractors shall, however, be free to use individual features from the Project or
combinations of features in other projects, so long as the Developer complies with the first
sentence of this paragraph. Developer shall include this provision in its contracts with its Design
Subcontractors and provide copies of these agreements to City.
3.4.4. As of the Date of Substantial Completion of the Project, or in the event of termination of the
Agreement, Developer shall turn over to City any of the Design Materials referred to above which
have not yet been submitted to City. Developer shall submit the Design Materials to City within ten
days of the Date of Substantial Completion, or date of termination. In the event of the failure by
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Developer to make such delivery as provided above, Developer shall pay City any damages City
may sustain from the failure.
ARTICLE 4
AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS
4.1 Availability of Lands:
The City shall furnish, as indicated in the Contract Documents and at no cost to Developer~ the
Jands upon which the Work is to be performed, rights-of-way and easements for access. The City
and the Developer shall jointly obtain easements for utilities necessary to perform the Work under
the Contract Documents in accordance with the Schedule. The Developer shall have full
responsibility with respect to any conditions or provisions contained in applicable easements
relating to the lands Upon which the Work is to be performed..
4.2 Physical Conditions:
4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Special Conditions for
identification of those reports of explorations and tests of subsurface conditions at the site that
have been utilized by the City in preparation of the Contract Documents, The Developer may not
rely upon the accuracy of the technical data contained in such reports, or upon non-technical data,
interpretations or opinions contained therein or for the completeness thereof for the Developer's
purposes. Developer shaJl verify to its satisfaction the information and data contained in such
reports. Developer shall have full responsibiJity with respect to subsurface conditions at the site.
Developer shall exemise ordinary skill and competence with respect to reliance upon the accuracy
of the technica} data contained in such reports. The City has no knowledge that the information
provided to the Developer is in accurate and incomplete.
4.2.2. EXISTING STRUCTURES: Reference is made to the Special Conditions for identification
of those drawings of physical conditions in or relating to existing surface and subsurface structures
(except Underground Facilities referred to in paragraph 4.3) which are at or contiguous to the site
that have been utilized by the'City in preparation of the Contract Documents. The Developer may
not rely upon the accuracy of the technical data contained in such drawings, or for the
completeness thereof for the Developer's purposes. Developer shall have full responsibility with
respect to physical conditions in or relating to such structures. The Developer shall exemise
ordinary skill and competence with respect to reliance upon the accuracy of the technical data
contained in such drawings.
4.2.3. REPORT OF DIFFERING CONDITIONS: If the Developer believes that any physical
condition uncovered or revealed at the site differs materially from that indicated, reflected or
referred to in the Contract Documents, then, the Developer shall promptly, after becoming aware
thereof and before performing any Work in connection therewith (except in an emergency as
permitted by paragraph 6.18) notify the City in writing about the inaccurecy or difference.
4.2.4. CITY'S REVIEW: The City will promptly review the pertinent conditions, determine the
necessity of obtaining additional explorations or tests with respect thereto and advise the
Developer in writing of the City's findings and conclusions.
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4.2.5. POSSIBLE DOCUMENT CHANGE: If the City concludes that there is a material error in
the Contract Documents caused by the City and not as a result of the Developer's unwarranted
reliance thereon, a change in the Contract Documents is required, a Change Order will be issued
as provided in Article 10 to reflect and document the consequences of the inaccuracy or difference.
4.2.6. POSSIBLE PRICE AND TIME ADJUSTMENTS: In each such case, an increase or
decrease in the Contract Price or an extension or shortening of the Contract Time, or any
combination thereof, may be allowable to the extent that they are attributable to any such
inaccuracy or difference as described in Section 4.2.3. The Developer shall meet and obtain
approval from the City prior to implementing any such change in the Work.
4.3 Physical Conditions - Underground Facilities:
4.3.1. SHOWN OR INDICATED: The information and data shown or indicated in the Contract
Documents with respect to existing Underground Facilities at or contiguous to the site is based on
information and data furnished to the City by the owners of such Underground Facilities or by
others. Unless it is otherwise expressly provided in the Special Conditions:
4.3.1.1. The City shall not be responsible for the accuracy or completeness of any
such information or data. The City has no knowledge that the information provided to the
Developer is incomplete or inaccurate; and
4.3.1.2. The Developer shall have full responsibility for determining the existence of all
Underground Facilities, for reviewing and checking and potholing for all such information
and data, for locating all Underground Facilities shown or indicated in the Contract
Documents, for coordination of the Work with the owners of such Underground Facilities
during construction, for the safety and protection thereof as provided in paragraph 6.17 and
for repairing any damage thereto resulting from the Work, the cost of all of which will be
.. considered as having been included in the Contract Price.
4.3.2. NOT SHOWN OR INDICATED: If an Underground Facility is uncovered or revealed at or
contiguous to the site which was not shown or indicated in the Contract Documents and which
Developer could not reasonably have been expected to be aware of, Developer shall, promptly
after becoming aware thereof and before performing any Work affected thereby (except in an
emergency as permitted by paragraph 6.17.1), identify the owner of such Underground Facility and
give written notice thereof to that owner and to the City. The City will promptly review the
Underground Facility to determine the extent to which the Contract Documents should be modified
to reflect and document the consequences of the existence of the Underground Facility, and the
Contract Documents may be amended or supplemented to the extent necessary. During such
time, Developer shall be responsible for the safety and protection of such Underground Facility as
provided in paragraph 6.17.1. The Developer may be allowed an increase in the Contract Price or
an extension of the Contract Time, or both, to the extent that they are attributable to the existence
of any Underground Facility that was not shown or indicated in the Contract Documents and of
which the Developer could not reasonably have been expected to be aware of such Underground
Facility and subject to acceptance and approval by the City.
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4.4 Reference Points:
4.4. The City shall provide engineering surveys to establish reference points for construction
which in the City's judgment are necessary to enable Developer to proceed with the Work.
Developer shall be responsible for laying out the Work, shall protect and preserve the established
reference points and shall make no changes or re-locations without the prior written approval of the
City. The Developer shall report to the City whenever any reference point is lost or destroyed or
requires relocation because of necessary changes in grades or locations, and shall be responsible
for the accurate replacement or relocation of such reference points by a Registered Professional
Land Surveyor Licensed in the State of Colorado.
4.5 Protection and Restoration of Property and Landscape:
4.5.1. The Developer shall be responsible for the preservation of all public and private property
and shall protect carefully from disturbance or damage all land and property and shall protect
carefully from disturbance or damage all land and monuments and property marks until the City
has witnessed or otherwise referenced their location and shall not remove them until directed.
4.5.2. The Developer shall be responsible for all damage or injury to property of any character,
during the prosecution of the Work, resulting from any act, omission, neglect, or misconduct in his
manner or method of executing the Work, or at any time due to defective Work or materials, and
said responsibility shall not be released until the project shall have been completed and accepted.
4.5.3. When or where any direct or indirect damage or injury is done to public or private property
by or on account of any act, omission, neglect, or misconduct by the Developer in the execution of
the Work, or in consequence of the non-execution thereof by the Developer, he shall restore, at his
own expense, such property to a condition similar or equal to that existing before such damage or
injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or he shall
make good such damage or injury in an acceptable manner.
4.5.4. State Highway 82 and the streets within the corporate limits of the City of Aspen are viewed
by the City as a community asset which enhances the tourism industry. The City, therefore, desires
to save all vegetation and other environmental features except for those which have been
specifically identified for removal in the Contract Documents.
4.5,5. Materials storage, equipment parking, vehicle parking and stockpiling excavated materials
shall be allowed only in those areas designated by the City.
4.5.6. Specific areas of vegetation and other environmental features to be protected shall be
staked, fenced, or otherwise marked in the field jointly by the City and the Developer in a manner
reasonably acceptable to both parties. The Developer shall perform all his activities in such a
manner that the least environmental damage shall result. Any questionable areas or items shall be
brought to the attention of the City for approval pdor to removal or any damage activity. Damage
or destruction of unmarked trees or shrubs which could reasonably have been saved shall
therefore be subject to the provisions this Part 2 Agreement.
4.5.7. If the fence, staking or marking is knocked down or destroyed by the Developer, the
Developer shall suspend the Work in whole or in part, until the fence or other protection is repaired
~)B4-03.doc **DB4 Page 13
to the City's satisfaction at the Developer's expense. Time lost due to such suspension shall not be
considered a basis for adjustment of Contract Time or for compensation to the Developer.
4.5.8. If the Developer disturbs any of the landscape not called for removal, he/she shall restore
those areas as directed at the DevelOper's expense.
4.5.9. The City may require that the Developer replant a protected area that is damaged. The
Work shall be done as directed by the City. If the Developer is deemed to be responsible, then the
replanting shall be done by the Developer at his/her expense. If the City is responsible, the costs
will be reimbursed on a minor contract revisions (MCR) basis unless existing cost proposal covers
the Work.
4.5.10. With respect to replacement of protected trees and shrubs that have been damaged or
destroyed, the following conditions shall apply:
4.5.10.1. Trees or shrubs of replaceable size shall be replaced by the Developer at
his/her expense. If he/she fails to do so within a reasonable length of time as determined by
the City and prior to the end of the contract time, the replacement value of the trees or
shrubs will be deducted from any money due to the Developer. These values shall be
based upon averages derived from current prices of nurseries growing the plants, plus the
cost for planting and a guarantee for the first growing season.
4.5.10.2. When trees or shrubs beyond replaceable size have been damaged or
destroyed, the value of such trees or shrubs shall be calculated as per square yard of
surface area measured at the ground level.
4.5.10.3. Any deduction assessed as liquidated damages under this section shall not
relieve the Developer from liability for any damages or costs resulting from delays to the
City, traveling public or other Developers.
4.6 Hazardous Materials
4.6.1. Prior to commencement of any Work and as a condition precedent to payment by the City of
any costs for it, the Developer shall at no additional cost to the City conduct tests the Developer
deems necessary to determine the existence of Hazardous Materials by appropriately licensed
Subcontractors or entities. The City shall reimburse the Developer for the invoice costs of the
tests, only in the event that the Developer furnishes the City with certified test data and results
which confirm the existence of Hazardous Materials. The City has obtained such environmental
testing to surmise that no hazardous materials should exist on the property and the City has no
knowledge that the information provided to the Developer is incomplete or inaccurate.
4.6.2. If Hazardous Materials are discovered on or under real property which is owned by the City
before the date of Substantial Completion and Acceptance in accordance with Article 14 herein,
the City shall, upon the request of the Developer, and at the City's sole cost and expense, cause
any such Hazardous Materials to be encapsulated, treated or removed from such real property and
transported for final disposal in accordance with all Laws and Regulations, and shall cause such
real property to be restored to its condition existing prior to such removal (except for the absence of
Hazardous Materials), including, to the extent required, any grading and reinforcement necessary
~B4-03.doc **DB4 Page 14
to restore the weight-bearing capacity of such real property prior to such event. The City shall
remove the Hazardous Materials and restore the real property in such a manner as not to interfere
with the Developer's construction or operation of the Project.
4.6.3. If Hazardous Materials are present on or Under the Project right-of-way as a result of any
discharge, dumping or spilling on the Project right-of-way during the term of the Contract by any
party under contract with or controlled by the Developer, excluding the employees, agents and
representatives of the City and of an agency of the executive branch of State or Federal
Government, the Developer shall at the Developer's sole cost and expense, cause any such
Hazardous Materials to be encapsulated, treated or removed from the Project right-of-way and
transported for final disposal in accordance with all applicable Laws and Regulations, and shall
cause the Project right-of-way to be restored to its condition existing pdor to such removal (except
for the absence of the Hazardous Materials), including, to the extent required, any grading and
reinforcement necessary to restore the weight-bearing capacity of the Project right-of-way prior to
such event,
4.6.4, The City shall not be responsible for the cost of and the removal or clean-up of Hazardous
Materials found in any materials brought to the Project Site, after the Project Site is turned over to
the Developer.
4.6.5. The Developer shall be responsible for assuring that the materials and equipment used for
the Affordable Housing Project either do not contain hazardous materials or are handled in
accordance with all laws and regulations pertaining to the use of such hazardous materials.
4.6.6. The Developer and the City shall cooperate with each other in the prosecution of any claim
against or defense of any claims made by third parties in connection with Hazardous Materials
present on the Project right-of-way or contiguous properties owed or controlled by the City.
4.7 Developer Representations
By executing this Part 2 Agreement, the Developer represents that he/she has visited the site,
familiarized him/herself with the local conditions under which the Work is to be performed
(including weather conditions which can be expected), and correlated his observations with the
requirements of the Contract Documents.
ARTICLE 5
BONDS, INDEMNIFICATION AND INSURANCE
5.1 Performance, Payment, and Maintenance Bonds:
5.1.1. Developer shall furnish performance, payment, and maintenance Bonds. each in an amount
specified in the Special Conditions as security for the faithful performance and payment of apl the
Developer's obligations under the Contract Documents. These Bonds shall remain in effect until
the job is advertised and closed except for the Maintenance Bond which shall remain in full force
and effect for one year from the date of project closure, except as otherwise provided by the
Contract Documents. The Developer shall also furnish such other Bonds as are required by the
Special Conditions. Ali Bonds shall be in the forms prescribed by Law or Regulation or by the
~B~t-03.doc **DB4 Page 15
Contract Documents and be executed by such sureties as are named in the current list of
"Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as
Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff
Bureau of Accounts, U.S. Treasury Department. All Bonds signed by an agent must be
accompanied by a certified copy of the authority to act.
5.1.2. If the surety on any Bond furnished by Developer is declared a bankrupt or becomes
insolvent or its right to do business is terminated in any state or it ceases to meet the requirements
of paragraph 5.1, Developer shall within five days thereafter substitute another Bond and Surety,
both of which must be acceptable to the City.
5.2 Indemnification:
The Developer 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 without limitation claims adsing from bodily injury, personal injury,
sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which
arise out of or are in any manner connected with this contract, to the extent that 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
act, omission, error, professional error, mistake, negligence, or other fault of the Developer, any
Subcontractor of the Developer, or any officer, employee, representative, or agent of the Developer
or of any Subcontractor of the Developer, or which adses out of any workmen's compensation
claim of any employee of the Developer or of any employee of any Subcontractor of the Developer.
The Developer agrees to investigate, handle, respond to, and provide defense for and defend
against, any such liability, claims or demands at the sole expense of the Developer, 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 Developer 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 Developer for the portion of the judgment attributable to such act,
omission, or other fault of the City, its officers, or employees.
5.3 Developer's Insurance:
5.3.1. The Developer 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 Developer pursuant to Section 5.2 above. Such insurance shall be in addition to any other
insurance requirements imposed by this contract or by law. The Developer shall not be relieved of
any liability, claims, demands, or other obligations assumed pursuant to Section 5.2 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.
5.3.2. Developer shall procure and maintain, and shall cause any Subcontractor of the Developer
to procure and maintain, the minimum insurance coverages listed in the Special Conditions. If the
Special Conditions do not set forth minimum insurance coverage, then the minimum coverage
shall be as set forth below. Such coverage shall be 2rocured and maintained with forms and
~)B4-03.doc **DB4 Page 16
insurance acceptable to City. All coverage shall be continuously maintained to cover all liability,
claims, demands, and other obligations assumed by the Developer pursuant to Section 5.2 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.
5.3.2.1. 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 FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease - each employee. Evidence of qualified self-insured status may be
substituted for the Workmen's Compensation requirements of this paragraph.
5.3.2.2. 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 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 Developers, products, and completed
operations. The policy shall include coverage for explosion, collapse, and underground
hazards. The policy shall contain a severabJlity of interests provision.
5.3.2.3. 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 occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate
with respect to each Developer's owned, hired and non-owned vehicles assigned to or used
in performance of the services. The policy shall contain a severability of interests provision.
If the Developer has no owned automobiles, the requirements of this Section 5.4.2.3 shall
be met by each employee of the Developer providing services to the City under this
contract.
5.2.2.4 Property Insurance upon the Construction at the site in an amount equal to
the full replacement cost thereof and to include, at a minimum, the interests of the City,
Developer and subcontractors each of whom shall be considered to have an insurable
interest and shall be listed as additional insureds; be written on a Builder's Risk "all-risk" or
open pedl or special causes of loss policy form that shall at least include insurance for
physical loss and damage to the Construction, temporary buildings, false work and all
materials and equipment in transit, and shall insure against at least the following pedls or
causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief,
earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and
Regulations, water damage, and such other perils or causes of loss as may be specifically
required by the Special Conditions; said coverage to also include expenses incurred in the
repair or replacement of any insured property (including but not limited to fees and charges
of engineers and architects); and shall also include coverage to cover materials and
equipment stored at the Site or at another location that was agreed to in writing by City prior
to being incorporated in the Work, provided such materials and equipment have been
included in an Application for payment approved by the City; and shall be maintained in
effect until final payment is made.
~B4-03.doc **DB4 Page 17
5.2.2.5. Professional Liability Insurance (with respect to design professionals only)
with minimum limits of not less than FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) each claim and in the aggregate.
The budget attached to the Agreement contains an allowance of $363,000 to cover bonds
and insurance related to this project. If the bonds and insurance cost more than this
allowance amount, the amount of compensation will be adjusted to reflect the exact amount
of such costs unless the City agrees to reduce or waive the bond and/or insurance
requirements, but the Developer shall take reasonable measures, which shall be
documented and dated, to provide appropriate coverage before approaching the City.
Reasonable measures in this situation is defined as researching three different alternative
bonds / insurance agencies' coverage and associated cost.
5.3.3. Except for any Professional Liability insurance that may be required, the policy or policies
required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and
employees as additional insureds. Every policy required above shall be pdmary insurance, and any
insurance carried by the City of Aspen, its officers or employees, or carded by or provided through
any insurance pool of the City of Aspen, shall be excess and not contributory insurance to that
provided by Developer. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Developer shall be solely responsible for any deductible losses under any policy required above.
5.3.4. The certificate of insurance provided by the City of Aspen shall be completed by the
Developer's insurance agent as evidence that policies providing the required coverage, conditions,
and minimum limits are in full force and effect, and shall be reviewed and approved by the City of
Aspen pdor to commencement of the contract. No other form of certificate shall be used. The
certificate shall identify this contract and shall provide that the coverage 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 of Aspen.
5.3.5. In addition, these Certificates of Insurance shall contain the following clauses:
Underwriters and issuers shall have no dght of recovery or subrogation against the City of
Aspen, it being the intention of the parties that the insurance policies so effected shall
protect all parties and be primary coverage for any and all losses covered by the above-
described insurance. To the extent that the City's insurer(s) may become liable for
secondary or excess coverage, the City's underwriters and insurers shall have no right of
recovery or subrogation against the Developer and issuers shall have no right of recovery or
subrogation against the City of Aspen, it being the intention of the parties that the insurance
policies so effected shall protect all parties and be primary coverage for any and all losses
covered by the above-described insurance.
The insurance companies issuing the policy or policies shall have no recourse against the
City of Aspen for payment of any premiums or for assessments under any form of policy.
Any and all deductibles in the above-described insurance policies shall be assumed by and
be for the amount of, and at the sole risk of the Developer.
~)B4-O3.doc **DB4 Page 18
Location of operations shall be: "All operations and locations at which work in connection
with the referenced project is done."
Certificates of Insurance for all renewal policies shall be delivered to the City at least fifteen
(15) days prior to a policy's expiration date except for any policy expiring on the expiration date of
this agreement or thereafter.
5.3.6. Failure on the part of the Developer to procure or maintain policies providing the required
coverage, 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 or renew any
such policy or any extended reporting period thereto and may pay any and all premiums in
connection therewith. All moneys so paid by City shall be repaid by Developer to City upon
demand, or City may offset the cost of the premiums against moneys due to Developer from City.
5.3.7, City reserves the dght to request and receive a certified copy of any policy and any
endorsement thereto.
5.4 City's Liability lnsurance:
5.4.1. 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 ClRSA policies and manual are kept at the City of Aspen Finance Department and
are available to Developer for inspection during normal business hours. City makes no
representations whatsoever with respect to specific coverage offered by CIRSA. City shall provide
Developer reasonable notice of any changes in its membership or participation in ClRSA.
5.4.2. The parties hereto further 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 or any other rights,
immunities, and protections 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. Further, nothing in the Contract Documents shall be construed or interpreted to require
or provide for indemnification of the Developer by the City for any ~njury to any person or any
property damage whatsoever which is caused by the negligence or other misconduct of City or its
agents or employees.
ARTICLE 6
DEVELOPER'S RESPONSIBILITIES
6.1 General Responsibilities:
6.1,1. Design services required by this Part 2 Agreement shall be performed by qualified architects
and other design professionals. The contractual obligations of such professional persons or entities
are undertaken and performed in the interest of the Developer. The agreements between
Developer and the persons or entities identified in the Part 2 Agreement, and any subsequent
modifications, shall be in writing. These agreements, including financial arrangements with respect
to this Project, shall be promptly and fully disclosed to the City.
~)B4-03.doc **DB4 Page 19
6.1.2. The Developer covenants and warrants that it shall be responsible for performing the Work,
and that it shall do or cause to be done the Work and services as required in the Contract
Documents and any additional, collateral, and incidental Work and services as may be necessary
in order to complete the Project in accordance with the requirements of the Contract Documents,
shall be responsible for providing completed Work which meets the results required by the
Contract Documents, and shall achieve Substantial Completion (100% of the Work) by the
Contract Time. The Developer shall be responsible to City for acts and omissions of the
Developer's employees, subcontractors and their agents and employees, and other persons,
including Architect and other design professionals, performing any portion of the Developer's
obligations under this Part 2 Agreement.
6.1.3. Construction services shall be performed in accordance with those professional standards
listed in the Special COnditions for quality and scope and shall be performed by the entities and
persons, SUbcontractors and specific personnel identified in the Developer's Proposal in
accordance with their respective degrees of participation provided and represented to City. Other
construction services shall be performed by qualified construction Subcontractors and Suppliers,
selected and paid by the Developer. Nothing contained in the Contract Documents shall be
construed to create any obligation or contractual liability running from the City to any of these
persons or entities.
6.2 Supervision and Superintendence:
6.2.1. The Developer shall supervise and direct the Work competently and efficiently devoting
such attention thereto and applying such skills and expertise as may be necessary to perform the
Work in accordance with the Contract Documents. The Developer shall be solely responsible for
the means, methods, techniques, sequences and procedures of construction. The Developer shall
be responsible to see that the finished Work complies accurately with the Contract Documents.
6.2.2. The Developer shall keep on the Work at all times during its progress a competent resident
superintendent, who shall not be replaced without written notice to the City except under
extraordinary circumstances. The superintendent will be the Developer's representative at the site
and shall have authority to act on behalf of the Developer. All communications given to the
superintendent shall be as binding as if given to the Developer.
6.3 Labor, Materials and Equipment:
6.3.1. The Developer shall provide competent, suitably qualified personnel to survey and lay out
the Work and perform construction as required by the Contract Documents. The Developer shall
at all times maintain good discipline and order at the site. Except in connection with the safety or
protection of persons or the work or property at the site or adjacent thereto, and except as
otherwise indicated in the Contract Documents, all Work at the site shall be performed at such
times and on such days as determined by the Developer in its reasonable discretion and subject to
any noise and/or other City and/or County regulations governing when work may be performed. If
the City wishes to limit the times of the work performed, the Contract time shall be modified
accordingly.
~)B4-03.doc **DB4 Page 20
6.3.2. Unless otherwise specified in the Specific Conditions or Specific Provisions, the Developer
shall furnish and assume full responsibility for all materials, equipment, labor, transportation,
construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water,
sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the
furnishing, performance, testing, start-up and completion of the Work.
6.3.3. All materials and equipment shall be of good quality and new, except as otherwise provided
in the Contract Documents. If required by the City, the Developer shall furnish satisfactory
evidence (including reports of required tests) as to the kind and quality of materials and equipment.
All materials and equipment shall be applied, installed, connected, erected, used, cleaned and
conditioned in accordance with the instructions of the applicable SupPlier except as otherwise
provided in the Contract Documents; but no provision of any such instructions will be effective to
assign to the City, or any of the City's consultants, agents or employees, any duty or authority to
supervise or direct the furnishing or performance of the Work or any duty or authority to undertake
responsibility contra ry to the provisions of paragraph 9.10.1. or 9.10.2.
6.4. Services and Responsibilities.
6.4.1. Design services required by this Part 2 Agreement shall be performed by qualified architects
and other design professionals. The contractual obligations of such professional persons or entities
are undertaken and performed in the interests of the Developer.
6.4.2. The agreements between the Developer and the persons or entities in this Part 2
Agreement, and any subsequent modifications, shall be in writing. These agreements, including
financial arrangements with respect to the Project, shall be promptly and fully disclosed to the City
upon request.
6.4.3. The Developer shall be responsible to the City for acts and omissions of the 'Developer's
employees, subcontractors and their agents and employees, and other persons, including the
Architect and other design professionals, performing any portion of the Developer's obligations
under this Part 2 Agreement.
6.5, Work Schedule:
6.5.1. The Developer shall submit to the City for acceptance such schedule of work prOgress
reports, estimates, records, and other data as the City may require concerning work performed or
to be performed. The final detailed schedule approved by both parties is attached to this Contact.
Please see attached "P304 and P305."
6.5.2. Prior to beginning of Work and or before the Pre-construction Conference, the Developer
shall submit schedules showing the order in which he/she proposed to carry on the Work, including
dates at which he/she will start the various parts of the Work, estimated date of completion of each
part.
6.6. Substitutes of "or-equal" Items:
6.6.1. Whenever materials or equipment are specified or described in the Contract Documents by
using the name of a proprietary item or the name of a particular Supplier the naming of the item is
~B4-03.doc *~DB4 Page 21
intended to establish the type, function and quality required. Unless the name is followed bywords
indicating that no substitution is permitted, materials or equipment of other Suppliers may be
accepted by the City if sufficient information is submitted by the Developer to allow the City to
determine that the material or equipment proposed is equivalent or equal to that named. The City
will include the following as supplemented in the General Requirements. Requests for review of
substitute items of material and equipment will not be accepted by the City from anyone other than
the Developer. If the Developer wishes to furnish or use a substitute item of material or equipment,
the Developer shall make written application to the City for acceptance thereof, certifying that the
proposed substitute will perform adequately the functions and achieve the results called for by the
general design, be similar and of equal substance to that specified and be suited to the same use
as that specified. The application will state that the evaluation and acceptance of the proposed
substitute will not prejudice the Developer's achievement of Substantial Completion on time,
whether or not acceptance of the substitute for use in the Work will require a change in any of the
Contract Documents (or in the provisions of any other direct contract with the City for work on the
Project) to adapt the design to the proposed substitute and whether or not incorporation or use of
the substitute in connection with the Work is subject to payment of any license fee or royalty. All
variations of the proposed substitute from that specified will be identified in the application and
available maintenance, repair and replacement service will be indicated. The application will also
contain an itemized estimate of all costs that will result directly or indirectly from acceptance of
such substitute, including costs of redesign and claims of other Developers affected by the
resulting change, all of which shall be considered by Architect in evaluating the proposed
substitute. The City may require the Developer to furnish at Developer's expense additional data
about the proposed substitute.
6.6.2. If a sPecific means, method, technique, sequence or procedure of construction is indicated
in or required by the Contract Documents, the Developer may furnish or utilize a substitute means,
method, sequence, technique or procedure of construction acceptable to the City. The procedure
for review by the City shall be similar to that provided in paragraph 6.8.1.
6.6.3. The City will be allowed a reasonable time within which to evaluate each proposed
substitute. The City will be the sole judge of acceptability, and no substitute will be ordered,
installed or utilized without the City's prior written acceptance which will be evidenced by an
approved Shop Drawing. The City may require the Developer to furnish at the Developer's
expense a special performance guarantee or other surety with respect to any substitute. The City
will record time required by the City and the City's consultants in evaluating substitutions proposed
by the Developer and in making changes in the Contract Documents occasioned thereby.
Whether or not the City accepts a proposed substitute, the Developer shall reimburse the City for
the charges of the City and the City's consultants for evaluating each proposed substitute.
6.7 Deleted
6.8 Deleted
6.9 Subcontractors, Suppliers and Others:
6.9.1. The Developer shall not employ any Subcontractor, Supplier or other person or organization
(including those acceptable to the City as indicated in paragraph 6.9.2), whether initially or as a
substitute, against whom the City may have reasonable objection.
~B4-03.doc **DB4 Page 22
6.9.2. Developer shall identify all Subcontractors, Suppliers or other persons or organizations who
are to furnish the principal items of materials and equipment to be submitted to the City in advance
of the specified date prior to the Effective Date of this Part 2 Agreement for acceptance by the City
and if the Developer has submitted a list thereof, the City's acceptance (either in writing or by
failing to make written objection thereto by the date indicated for acceptance or objection in the
bidding documents or the Contract Documents) of any such Subcontractor, Supplier or other
person or organization so identified may be revoked on the basis of reasonable objection after due
investigation, in which case the Developer shall submit an acceptable substitute, the Contract Price
will be increased by the difference in the cost occasioned by such suSstitution and an appropriate
Written Notice of Amendment signed. No acceptance by the City of any such Subcontractor,
Supplier or other person or organization shall constitute a waiver of any right of the City to reject
Defective Work.
6.9.3. The Developer shall be fully responsible to the City for all acts and omissions of the
Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the
Work under a direct or indirect contract with Developer just as Developer is responsible for
Developer's own acts and omissions. Nothing in the Contract Documents shall create any
contractual relationship between the City and any such Subcontractor, Supplier or other person or
organization, nor shall it create any obligation on the part of the City to pay or to see to the
payment of any moneys due any such Subcontractor, Supplier or other person or organization
except as may otherwise be required by Laws and Regulations.
6.9.4. The divisions and sections of the Specifications and the identifications of any Drawings shall
not control the Developer in dividing the Work among Subcontractors or Suppliers or delineating
the Work to be performed by any specific trade.
6.9.5. All Work performed for Developer by a Subcontractor will be pursuant to an appropriate
agreement between the Developer and the Subcontractor which specifically binds the
Subcontractor to the Applicable terms and conditions of the Contract Documents for the benefit of
the City and contain waiver provisions as required by Section 5.3. The Developer shall pay each
Subcontractor a just share of any insurance moneys received by the Developer on account of
losses.
6.10 Subcontracting and Percentage of Work Awarded to Subcontractor(s):
6.10.1. The Developer may utilize the services of specialty Subcontractors on those parts of the
Work, which under normal contracting practices, are performed by specialty Subcontractors.
6.10.2. The Developer shall provide the City with the name of any subcontractor which will provide
work to the project representing more than 20% of the Contract Price.
6,11 Patent Fees and Royalties:
The Developer shall pay all license fees and royalties and assume all costs incident to the use in
the performance of the Work or the incorporation in the Work of any invention, design, process,
product or device which is the subject of patent rights or copyrights held by others. Developer shall
indemnify and hold harmless the City and anyone directly or indirectly employed by either of them
~B4-03.doc **DB4 Page 23
from and against all claims, damages, losses and expenses (including attorney's fees and court
costs) arising out of any infringement of patent rights or copyrights incident to the use in the
performance of the Work or resulting from the product or device not specified in the Contract
Documents, and shall defend all such claims in connection with any alleged infringement of such
rights.
6.12 Permits:
Unless otherwise provided in the Special Conditions or in this paragraph, the Developer shall
obtain and pay for all construction permits and licenses. The City shall assist the Developer, when
necessary, in obtaining such permits and licenses. The City and the Developer shall jointly
prepare a list of the fees for all potential permits and licenses. The Developer shall pay all
governmental charges and inspection fees necessary for the prosecution of the Work, which are
applicable at the time of the Effective Date of this Part 2 Agreement. The Developer shall pay all
charges of utility owners for connections to the Work, and the City shall pay all charges of such
utility owners for capital costs related thereto such as plant investment fees. The budget attached
to this Agreement contains an allowance to cover all fees for licenses and permits required for the
performance of the Work. The Developer will confirm in writing to the City that it has researched
and appropriately budgeted for the previously noted permits and their associated fees. If the fees
and permits cost more or less than this allowance amount, the Contract Price will be adjusted in
accordance with Article 11 to reflect the exact amount of such costs. With respect to gas and
electric utility fees, the City will enter into any required agreements with providers, pay any
assessed fees and be entitled to any refunds allowed by such providers.
6.13 Laws and Regulations:
6.13.1 .The Developer shall give all notices and comply with all Laws and Regulations applicable to
furnishing and performance of the Work. Except where otherwise expressly required by applicable
Laws and Regulations, the City shall be responsible for monitoring the Developer's compliance
with any Laws or Regulations.
6.13.2.1f the Developer observes that the Specifications or Drawings are at variance with any Laws
or Regulations, the Developer shall give the City prompt written notice thereof, and any necessary
changes will be authorized by one of the methods indicated in paragraph 3.4. If the Developer
performs any Work knov(,ing or having reason to know that it is COntrary to Laws or Regulations,
and without such notice to the City, the Developer shall bear all costs arising therefrom.
6.14 Taxes:
The Developer, in its capacity as contractor for construction of the Project, shall pay all existing and
future applicable Federal, State and local sales, consumer, use and other similar taxes whether
direct or indirect which may be imposed as a result of this Agreement. Federal excise tax may not
apply to materials pumhased by the City. The Contract Price shall include all other Federal, state,
and/or local direct or indirect taxes which do apply as of the date hereof. The Contract Price shall
include the COst of compliance with all other Federal Laws and Regulations at no additional cost to
the City (except as provided in the Contract Documents). The Developer shall not be reimbursed
separately for any taxes which may apply except as provided in the Contract Documents and the
Developer shall be responsible for all taxes which may apply as a result of this Agreement. The
~B4-03,doc **DB4 Page 24
City is tax exempt from Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The
City is exempt from such taxes under registration numbers 98-02624. The Developer and its
Subcontractors shall apply to the Colorado Department of Revenue for a Certificate of Exemption
indicating that the Developer or Subcontractor's purchase of construction material or building
materials is for use in a building, structure, or other public work owned and used by the City.
6.15 Use of Premises:
6.15.1.The Developer shall confine construction equipment, the storage of materials and
equipment and the operations of workers to the Projec~ site and land and areas identified in, and
permitted by, the Contract Documents and other land and areas permitted by Laws and
Regulations, rights-of-way, permits and easements, and shall not unreasonably encumber the
premises with construction equipment or other materials or equipment. The Developer shall
assume full responsibility for any damage to any such land or area, or to the owner or occupant
thereof or of any land or areas contiguous thereto, resulting from the performance of the Work.
Should any claim be made against the City by any such owner or occupant because of the
performance of the Work, Developer shall promptly settle with such other party by agreement or
otherwise resolve the claim by law. The Developer shall, to the fullest extent permitted by Laws
and Regulations, indemnify and hold the City harmless from and against all claims, damages,
losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and
other professionals and court costs) arising directly, indirectly or consequentially out of any action,
legal or equitable, brought by any such other party against the City to the extent based on a claim
arising out of the Developer's performance of the Work.
6.15.2. During the progress of the Work, the Developer shall keep the premises free from
accumulations of waste materials, rubbish and other debris resulting from the Work. At the
completion of the Work, the Developer shall remove all waste materials, rubbish and debris from
and about the premises as well as all tools, appliances, construction equipment and machinery,
and surplus materials, and shall leave the site clean and ready for occupancy by the City. The
Developer shall restore to original condition all property not designated for alteration by the
Contract Documents.
6.15.3.The Developer shall not load or permit any part of any structure to be loaded in any manner
that will endanger the structure, nor shall the Developer subject any part of the Work or adjacent
property to stresses or pressures that will endanger it:
6.16 Record Documents:
The Developer shall maintain in a safe place at the site one record copy of all Drawings,
Specifications, Addenda, Written Amendments, Change Orders, Work Directive Changes, Field
Orders and written interpretations and clarifications in good order and annotated to show all
changes made during construction. These record documents together with all approved samples
and a counterpart of all approved Shop Drawings will be available to the City for reference. Upon
completion of the Work, these record documents, samples and Shop Drawings will be delivered to
the City.
6.17 Safety and Protection:
~B4-03.doc **DB4 Page 25
6.17.1.The Developer shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Work. The Developer shall take all necessary
precautions for the safety of, and shall provide the necessary protection to prevent damage, injury
or loss to:
6.17.1.1. All employees on the Work and other persons and organizations who may be
affected thereby;
6.17.1.2. All the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site; and
6.17.1.3. Other property at the site or adjacent thereto, including trees, shrubs, lawns,
walks, pavements, road-ways, structures, utilities and Underground .Facilities
not designated for removal, relocation or replacement in the course of
construction.
The Developer shall comply with all applicable Laws and Regulations of any public body having
jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and
shall erect and maintain all necessary safeguards for such safety and protection. The Developer
shall notify owners of adjacent property and of Underground Facilities and utility owners when
prosecution of the Work may affect them, and shall cooperate with them in the protection, removal,
relocation and replacement of their property. All damage, injury or loss to any property referred to
in paragraph 6.17.1.2 or 6.17.1.3 caused, directly or indirectly, in whole or in part, by the
Developer, any Subcontractor, Supplier or any other person or organization directly or indirectly
employed by any of them to perform or furnish any of the Work or anyone for whose acts any of
them may be liable, shall be remedied by the Developer. The Developer's duties and
responsibilities for the safety and protection of the Work shall continue until such time as all the
Work is completed and the City has issued a notice to the City and the Developer in accordance
with Section 14;5 that the Work is acceptable (except as otherwise expressly provided in
connection with Substantial Completion).
6.17.2.The Developer shall designate a person competent in OSHA safety related matters at the
site at all times during construction whose duty shall be the prevention of accidents including
confined space entry and work in the confined spaces.
6.18 Emergencies:
In emergencies affecting the safety or protection of persons or the Work or property at the site or
adjacent thereto, the Developer, without special instruction or authorization from the City, is
obligated to act to prevent threatened damage, injury or loss. The Developer shall give the City
prompt written notice if the Developer believes that any significant changes in the Work or
variations from the Contract Documents have been caused thereby. If the City determines that a
change in the Contract Documents is required because of the action taken in response to an
emergency, a written order will be issued to document the consequences of the changes or
variations.
6.19 Shop Drawings and Samples:
~B4-03.doc **DB4 Page 26
6.19.1.After checking and verifying all field measurements and after complying with applicable
procedures specified in the Contract Documents, the Developer shall submit to the City for review
and approval in accordance with the approved schedule of Shop Drawing submissions prior to Pre-
construction Conference, or for other appropriate action if so indicated in the Special Conditions,
three (3) copies (unless otherwise specified) of all Shop Drawings, which will bear a stamp or
specific wdtten indication that the Developer has satisfied the Developer's responsibilities under the
Contract Documents with respect to the review of the submission. All submissions will be identified
as the City may require. The data shown on the Shop Drawings will be complete with respect to
quantities, dimensions, specified performance and design criteria, materials and similar data to
enable the City to review the information as required.
6.19.2.The Developer shall also submit to the City for review and approval with such promptnes&
as to cause no delay in Work, all samples required by the Contract Documents. All samples will
have been checked by and accompanied by a specific written indication that the Developer has
satisfied the Developer's responsibilities under the Contract Documents with respect to the review
of the submission and will be identified clearly as to material, Supplier, pertinent data such as
catalog numbers and the use for which intended.
6.19.3.Before submission of each Shop Drawing or sample, the Developer shall have determined
and verified all quantities, dimensions, specified performance criteria, installation requirements,
materials, catalog numbers and similar data with respect thereto; and reviewed or coordinated
each Shop Drawing or sample with other Shop Drawings and samples and with the requirements
of the Work and the Contract Documents.
6.19.4.At the time of each submission, the Developer shall give the City specific written notice of
each variation that the Shop Drawings or samples may have from the requirements of the Contract
Documents, and, in addition, shall cause a specific notation to be made on each Shop Drawing
submitted to the City for review and approval of each such variation.
6.19.5.The City will review and approve within 5 business days of receipt Shop Drawings and
samples, but the City's review and approval will be only for conformance with the design concept of
the Project and for compliance with the information given in the Contract Documents and shall not
extend to means., methods, techniques, sequences or procedures of construction (except where a
specific means, method, technique, sequence or procedure of construction is indicated in or
required by the Contract Documents or specified by manufacturers) or to safety precautions or
programs incident thereto. The review and approval of a separate item as such will not indicate
approval of the assembly in which the item functions. The Developer shall make corrections
required by the City, and shall return the required number of corrected copies of Shop Drawings
and submit as required new samples for review and approval. The Developer shall direct specific
attention in writing to revisions other than the corrections called for by the City on previous
submittals.
6.19.6.The City's review and approval of Shop Drawings or samples shall not relieve the
Developer from responsibility for any variation from the requirements of the Contract Documents
unless the Developer has in writing called the City's attention to each such variation at the time of
submission as required by paragraph 6.19.4 and the City has given written approval of each such
variation by a specific written notation thereof incorporated in or accompanying the Shop Drawing
or sample approval; nor will any approval by the City relieve the Developer from responsibility for
~B4-03.doc **DB4 Page 2~'
errors or omissions in the Shop Drawings or from responsibility for having complied with the
provisions of paragraph 6.19.3.
6.19.7. Where a Shop Drawing or sample is required by the .Specifications, any related Work
performed prior to the City's review and approval of the pertinent submission will be the sole
expense and responsibility of the Developer.
6.20 Mechanics'Liens:
6.20.1. The Developer covenants and agrees that, to the extent permitted by law, no claims or
mechanics' liens against public funds (mechanic's liens) or claims of any kind, will be permitted to
arise, be filed or maintained against the Project or any part of it, any interest in it or any
improvementS on it, against any moneys due or to become due from the City to the Developer, for
or on account of any work, labor, services, materials, equipment or other items performed or
furnished for or in connection with the Project, and the Developer for itself, its Subcontractors,
laborers and material suppliers and employees does waive, release and relinquish these claims or
liens and all rights to file or maintain these liens and agrees further that this waiver of liens and
waiver of the right to file or maintain liens shall be independent covenant and shall apply also to
work, labor, services performed, materials, equipment and other items furnished under any
Change Order or supplemental agreement for extra or additional work in connection with the
Project. The Developer agrees to defend, indemnify, protect and save harmless the City from and
against any and all claims or liens and actions brought or judgments rendered, and from and
against any and all loss, damages, liability, costs and expenses, including legal fees and
disbursements, which the City may sustain or incur in connection with the Project.
6.20.2.The Developer also agrees as above for all of its Subcontractors, including but not limited to
suppliers and employees. If any of the Developer's Subcontractors, suppliers, employees or any
other person directly or indirectly acting for, through or under its authority or any of them files or
maintains a lien or claim as described above, the Developer agrees to cause claims or liens to be
satisfied, removed or discharged at its own expense by bond, payment or otherwise within thirty
(30) consecutive calendar days from he date of the filing, and upon the Developer's failure to do so
the City shall have the right, in addition to all other rights and remedies provided under this
Contract or by law, to cause the liens or claims to be satisfied, removed or discharged by whatever
means the City chooses, at the entire cost and expense of the Developer, the expense to include
legal fees and disbursements. The Developer shall give a copy of Claim Release form to all
Subcontractors and suppliers and shall include these provisions in all written contracts with
Subcontractors, or give written notice to all Subcontractors, suppliers or other persons having oral
agreements with the Developer.
6.20.3.The Developer agrees that moneys received for the performance of this Contract shall be
used first for payment due for labor, material, and services for the Project and taxes, and the
moneys shall not be diverted to satisfy obligations of the Developer on other accounts or contracts.
The Developer shall pay Subcontractors within ten (10) consecutive calendar days of receipt of a
progress payment from the City. The Developer shall furnish sworn affidavits in accordance with
the form furnished by the City, which shall state that amounts due or to become due, amounts
paid, and any other information necessary to indicate the financial condition of the Developer,
insofar as it relates to services, labor and material furnished, and to be furnished, under this
Contract. The City may take steps it may deem necessary to protect itself against any claims.
~B4-03.do¢ **DB4 Page 28
6.21 Continuing the Work:
The Developer shall carry on the Work and adhere to the progress schedule during all disputes or
disagreements with the City. No Work shall be delayed or postponed pending resolution of any
disputes or disagreements, except as Permitted herein or as the Developer and the City may
otherwise agree in writing.
6.22 Developer Facilities:
All temporary Developer facilities shall be in accordance with regulations and codes governing
such construction. The types of temporary construction facilities required for the Project may
include, but are not necessarily limited to, the following: (a) job site office space, (b) construction
water distribution, (c) temporary closures, (d) temporary heat, (e) hoists and temporary cranes, (f)
temporary roads and paving, (g) construction aids and miscellaneous facilities, (h) temporary
power distribution, (i) temporary lighting, (j) temporary toilet facilities. All operations of the
Developer, including storage of materials, upon the City's premises shall be confined to areas
authorized or approved by Owner in writing. Temporary buildings, storage sheds, shops, offices,
may be erected by the Developer only with the written approval of the City and shall be built or
provided with labor and materials furnished by the Developer without expense to the City. Such
temporary buildings and utilities shall remain the property of the Developer and shall be removed
by it at its expense upon completion of the Work.
ARTICLE 7
OTHER WORK
7.1 Related Work at Site:
7.1.1. The City may perform other work related to the Project at the site by the City's own forces,
have other work performed by utility owners or let other direct contracts therefor which shall contain
General Conditions similar to the provisions contained in this Part 2 Agreement. The Developer
shall perform and coordinate his/her activities with other Developers to avoid conflict and minimize
disruptions.
7.1.2. The Developer shall afford each utility owner and other Developer who is a party to such a
direct contract (or the City if the City is performing the additional work with the City's employees)
proper and safe access to the site and a reasonable opportunity for the introduction and storage of
materials and equipment and the execution of such work, and shall properly connect and
coordinate the Work with theirs. The Developer shall do all cutting, fitting and patching of the Work
that may be required to make its several parts come together properly and integrate with such
other work. The Developer shall not endanger any work of others by cutting, excavating or
otherwise altering their work and will only cut or alter their work with the wdtten consent of Architect
and the others whose work will be affected. The duties and responsibilities of Developer under this
paragraph are for the benefit of such utility owners and other Developers to the extent that there
are comparable provisions for the benefit of the Developer in said direct contracts between the City
and such utility owners and other Developers.
~B4-03.doc **DB4 Page 29
7.1.3. If any part of the Developer's Work depends for proper execution or results upon the work of
any such other Developer or utility owner (or the City), the Developer shall inspect and promptly
report to the City in writing any delays, defects or deficiencies in such work that render it
unavailable or unsuitable for such proper execution and results. The Developer's failure to report
such conditions will constitute an acceptance of the other work as fit and proper for integration with
the Developer's Work except for latent or non-apparent defects and deficiencies in the other work.
7.2 Coordination:
if the City contracts with others for the performance of other work on the Project at the site, the
person or organization of the activities among the various prime Developers may be identified in
the Special Conditions, and the specific matters to be covered by such authority and responsibility
may be itemized, and the extent of such authority and responsibilities may be provided, in the
Special Conditions. Unless otherwise provided in the Special Conditions, neither the City nor the
City shall have any authority or responsibility in respect of such coordination.
ARTICLE 8
CITY'S RESPONSIBILITIES
8.1. The City shall issue all communications to the Developer through the City's Representative
or his/her designated person.
8.2. The City shall furnish the data required of the City under the Contract Documents promptly
and shall make payments to the Developer through processing of the monthly Progress Pay
Estimate forms within 30 days from the cut-off date for a pay estimate form,
8.3. The City represents that an amount of money equal to the Contract Price has been duly
appropriated in accordance with the Municipal Code of the City of Aspen, under a purchase order.
The City shall not issue any Change Order or execute a Written Amendment requinng additional
compensable work, which work causes the aggregate amount appropriated by the City, unless the
Developer is given a written assurance that a lawful appropriations to cover the costs of the
additional work shall be made.
ARTICLE 9
CITY'S REPRESENTATIVE STATUS DURING CONSTRUCTION
9.1 City's Representative:
The City's Representative shall be identified to the Developer prior to the commencement of any
Work. The duties and responsibilities and the limitations of authority of the City's Representative
during construction are set forth in the Contract Documents and shall not be extended without
written consent of the City.
~B4-03.doc **DB4 Page 30
9.2 Visits to Site:
The City's Representative shall make visits to the site at intervals appropriate to the various stages
of construction to observe the progress and quality of the executed Work and to determine, in
general, if the Work is proceeding in accordance with the Contract Documents. The City's
Representative shall make on-site inspections to observe the quality or quantity of the Work. The
City's Representative's efforts will be directed toward providing for the City a greater degree of
confidence that the completed Work will conform to the Contract Documents. On the basis of such
visits and on-site observations, the City's Representative will keep the City informed of the
progress of the Work and will endeavor to guard the City against defects and deficiencies in the
Work.
9.3 Reserved
9.4 Clarification and Interpretations:
The City's Representative will issue with reasonable promptness such written clarifications or
interpretations of the requirements of the Contract Documents (in the form of Drawings or
otherwise) as the City's Representative may determine necessary, which shall be consistent with
or reasonably inferable from the overall intent of the Contract Documents. If a'written clarification
or interpretation justifies an increase in the Contract Price or an extension of the Contract Time,
the Developer shall meet with the City's Representative and resolve the issae. All such requests
or claims shall be submitted to the City's Representative.
9.5 Authorized Variations in Work and Minor Contract Revisions:
The City's Representative may request or authorize minor variations in the Work from the
requirements of the Contract Documents which do not involve an adjustment in the Contract Price
or the Contract Time and are consistent with the overall intent of the Contract Documents. These
may be accomplished by a wdtten request or a field order and will be binding on the City, and also
on the Developer who shall perform the Work involved promptly. If the Developer believes that a
field order justifies an extension of the Contract Time and the parties are unable to agree as to the
extent thereof, the Developer may make a claim therefore as provided herein.
9.6 Rejecting Defective Work:
The City's Representative will have authority to disapprove or reject Work which the City's
Representative believes to be Defective, and will also have authority to require special inspection
or testing of the Work as provided herein below, whether or not the. Work is fabricated, installed or
completed.
9. 7. Shop Drawings, Change Orders and Payments:
9.7.1 Reserved.
9.7~2. In connection with the City's Representative's responsibilities as to Change Orders, see
Article 10 and Article 11.
~B4-03.doc **DB4 Page 31
9.7.3. In connection with the City's Representative's responsibilities in respect of request for
Payment, etc.
9.8 Decisions on Disputes:
9.8.1. The City's Representative will be the initial interpreter of the requirements of the Contract
Documents and judge of the acceptability of the Work thereunder. Claims, disputes and other
matters raised by Developer relating to the acceptability of the Work or the interpretation .of the
requirements of the Contract Documents pertaining to the performance and furnishing of the Work
and claims under Articles 11 and 12 in respect to changes in the Contract Price or Contract Time
shall be referred initially to the City's Representative in writing with a request for a formal decision
in accordance with this paragraph, which the City's Representative will render in writing within a
reasonable time. Written notice of each such claim, dispute and other matter by the Developer will
be delivered to the City's Representative promptly (but in no event later than thirty days) after the
occurrence of the event giving rise thereto, and written supporting data will be submitted to the
City's Representative and the City within sixty days after such occurrence unless the City's
Representative allows an additional period of time to ascertain more accurate data in support of
the claim.
9.8.2. The rendering of a decision by the City's Representative pursuant to paragraph 9.8.1. with
respect to any such claim, dispute or other matter shall be a condition precedent to any exercise by
the Developer of such rights or remedies as the Developer may otherwise have under the Contract
Documents or by Laws or Regulations in respect of any such claim, dispute or other matter. The
City shall not be bound by any initial interpretation by the City's Representative of the requirements
of the Contract Documents, judgment on the acceptability of the Work thereunder, or formal
decision made by the City's Representative in accordance with paragraph 9.8.1. Any dispute not
resolved by the initial decision of the City's Representative shall be decided by the City, who shall
reduce the decision in writing and furnish a copy thereof to the Developer and the City's
Representative. The decision of the City shall be final subject to review by the Pitkin County District
Court in Pitkin County, Colorado. Pending final decision of a dispute hereunder, the Developer
shall proceed diligently with the performance of the Work and in accordance with the City's
Representative's interpretation.
9.9 Reserved
9.10 Limitations on City's Representative's Responsibilities:
9.10.1.Neither the City's Representative's authority to act under this Article 9 or elsewhere in the
Contract Documents nor any decision made by the City's Representative in good faith either to
exercise or not exercise such authorit, y shall give rise to any duty or responsibility of the City's
Representative to the Developer, any Subcontractor, any Supplier, or any other person or
organization performing any of the Work, or to any surety for any of them.
9.10.2.Whenever in the Contract Documents the terms "as ordered", "as directed", "as required",
"as allowed", "as approved" or terms of like effect or import are used, or the adjectives
"reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import
are used to describe a requirement, direction, review or judgment of the City's Representative as to
~B4-03.do¢ **DB4 Page 32
the Work, it is intended that such requirement, direction, review or judgment will be solely to
evaluate the Work for compliance with the Contract Documents (unless there is a specific
statement indicating otherwise). The use of any such term or adjective shall not be effective to
assign to the City's Representative any duty or authority to supervise or direct the furnishing or
performance of the Work or any duty or authority to undertake responsibility contrary to the
Contract Documents.
ARTICLE 10
CHANGES IN THE WORK
10.1 City Initiated Changes
10.1.1.The City may require, without notification to sureties, the Developer to perform changes,
additions or deletions to the Work at anytime after execution of the Contract without invalidating the
Contract. Changes shall be accomplished as set forth in Section 3.2, above.
10.1 ~2. Provided the changes in the Work are the subject of a Change Order executed by the City
and Developer covering the scope of the change, the Developer shall promptly perform changes in
the Work in accordance with applicable provisions of the Contract Documents, unless otherwise
provided in a Change Order or Amendment to this Part 2 Agreement.
10.1.3. The following procedure shall be followed for the City notifying the Developer of proposed
City initiated changes. The City's Representative shall issue a notice informing the Developer of a
planned change in the Work and its scope, and requesting the Developer's detailed price proposal.
The Developer, at no expense to the City, shall submit a priced proposal for performing the
proposed change in [he Work. The Developer, within ten (10) consecutive calendar days after
receiving the Notice of Change, or such longer time which the City's Representative in his/her
discretion has granted, shall provide the City's Representative with a complete and itemized
proposal which includes the estimated increase or decrease in the Contract Price and/or in the
Contract Time attributable to the planned changes on the criteria and methods described in Article
11. The Developer shall be responsible for delays to the Work and any additional costs incurred by
the City caused by its failure to submit complete pricing information within the time provided above.
The Developer shall participate with the City in prompt joint analysis and negotiations to finalize a
Change Order, if necessary.
10.2 Written Notice of Change
10.2.1. A Written Notice of Change may be used when:
a) The City determines that the Developer must proceed immediately to perform a
change in the Work in order to avoid an adverse im pact on the schedule or other
unchanged Work, and sufficient time ~s not available to negotiate an adjustment to
the Contract Price or Contract Time; or
b) The City and Developer have not completed their negotiation and reached
agreement on all of the terms of a Change Order, but the City requires the Developer
to proceed without such agreement.
~B4-03.doc **DB4 Page 33
10.2.2. Upon receipt of a Wdtten Notice of Change the Developer shall promptly proceed with
performing the change in the Work. Additionally, the Developer shall comply with all the
requirements of 10.3 of this Part 2 Agreement.
10.3 Change Order
When the Developer and the City reach agreement on the adjustments to the Contract Price
and/or Contract Time, such agreements shall be promptly recorded in an executed Change Order.
10.4 Developer Change Request
10.4.1. if the Developer: (i) receives any oral or written instructions, directives or interpretations of
Contract Documents, or determinations from the City or, (ii) identifies what it believes are design
errors or omissions in the Contract Drawings or Specifications, or (iii) encounters a differing site
condition; or, (iv) is delayed in the progress of the Work; or, (v) becomes aware of any other matter
or circumstance which it believes would require a change in the Contract Price or Contract Time,
the Developer shall give the City prompt written notice of such matters in a letter or notice
denominated "Developer Change Request".
10.4.2~ All Developer Change Requests shall be dated, numbered sequentially, and shall describe
the action or event which the Developer believes may require an extension in time or price. The
Developer shall also provide descriptions of possible Developer actions or solutions to minimize
the cost of the Developer Change Request and, provide an estimate of the adjustment in the
Contract Price and/or Contract Time which it believes is appropriate~
10.4.3. With respect to orders, instructions, directives, interpretations, determinations, or the
discovery of any errors or omissions in the Contract Documents, a Developer Change Request
shall be submitted before the Developer acts on them, but in no event more than ten (10)
consecutive calendar days after they were received or discovered.
10.4.4. With respect to any differing site conditions, a Developer Change Request shall be
submitted before the conditions are disturbed, but in no event more than ten (10) consecutive
calendar days after the conditions are first discovered.
10.4.5. With respect to delays, a Developer Change Request shall be submitted as soon as the
Developer has knowledge of the delay, but in no event more than ten (10) consecutive calendar
days therefrom.
10.4.6. With respect to any matters or cimumstance which the Developer believes would require a
change, including delays, a Developer Change Request shall be submitted as soon as the
Developer has knowledge of the matter or circumstance, but in no event more than ten (10)
consecutive calendar days after the Developer becomes aware of such circumstance or matter.
10.5 Down Time:
~B4-03.doc *'DB4 Page 34
The Developer may be granted time extension for down time. No other compensation of any kind
shall be made to the Developer for down time. Equipment failure, lack of adequate labor or tools
or materials to perform the Work shall not constitute down time.
10.6 Submittal Requirements and Waiver of Claims
10.6.1. If the Developer does not submit a Developer Change Request within the time required
above, any action bythe Developer related to such Order, direction, instruction, interpretation;
determination, design error or omission, or other matter, including delays or differing site
conditions, will not be considered by the City as a change to the Work and the Developer waives
any claim for an adjustment on the Contract Price or the Contract Time.
10.6.2. The Developer shall, within ten (10) consecutive calendar days submit in detail, a
Developer Change Request, and provide the City a complete and itemized proposal which
contains the information described in Article 11. The proposal shall also contain a detailed
explanation, citing all applicable provisions in the Contract Documents, which supports the
Developer Change Request. If the Developer does not submit its itemized proposal within the time
described above or within such extension which the City, in his/her discretion may have granted in
writing, it waives any claim for an adjustment in the Contract Price or Contract Time arising out of
the act or event described in the Contract Change Request.
10.6.3. If a Developer Change Request is denied by the City, in whole or in part, any claim for an
increase in the Contract Price or Contract Time arising out of the act or event described in the
Developer Change Request is waived unless the Developer timely complies with the provisions of
paragraphs 10.4.1. through 10.4.6.
ARTICLE 11
CHANGE OF CONTRACT PRICE OR CONTRACT TIME
11.1 Contract Price Adjustments.
All adjustments to the Contract Price shall be determined by using one or moro of the following
methods:
11.1.1 A negotiated lump sum for work items that cannot be itemized. The Developer shall
promptly provide sufficient substantiating data, including calculations, measurements, cost rocords,
production rates, equipment types and capacity, labor costs by craft and other information which
the City may roasonably requiro the Developer to produce in order to permit the City to evaluate
the Developer's lump sum change order proposals. In pricing this proposal, the Developer shall
include estimates of the type of costs described in Section 11.4 below.
11.1.2 Unit prices stated in the Contract Documents or subsequently agroed upon multiplied by
final verified quantities of work performed;
11,1.3 Cost to be determined in a manner agroed upon by the parties which includes markups that
do not exceed those set forth in Section 1114 below.
~B4-03.doc **DB4 Page 35
11.1.4 Costs to be determined in the manner described in Section 11.3.1.
11.2 Contract Time Adjustments.
11.2.1. Any extension of the Contract Time must be requested in a Developer Change Request
which complies with all of the requirements of paragraphs 10.4.1 through 10.4.6. Failure to strictly
comply with the timing and submittal requirements shall constitute a Waiver of any request or claim.
11.2.2. if the Developer is delayed at any time in the progress of the Work and such delay was
caused, in whole or in part, by the act or omission of the City, or by changes ordered in the Work
pursuant to strikes, lockouts, fire, unusual delay by common carriers, unavoidable casualties, or
any other causes beyond the Developer's control, then the Contract Time shall be extended by the
City. Such extension will be for a period of time equal to the time of the delay, provided however,
that such delay could not have been avoided by the exercise of due diligence by the Developer
and did not result from the acts or omissions of the Developer and, provided further, that they
Developer has taken reasonable actions to mitigate or prevent further delays resulting from such
causes.
11.2.3. If abnormal weather conditions are the basis for a claim for an extension of the Contract
Time, such claim shall be documented on the City's Daily Construction Log forms substantiating
that weather conditions were unusually severe for the period of time, and could not have been
reasonably anticipated. Regardless of actual weather conditions, any day in which the Developer
is able to work sixty percent (60%) or more of its scheduled work force shall not be counted as an
abnormal weather day for purposes of calculating weather related time extensions.
11.2.4. The Developer agrees that delays resulting from any causes other than acts or omissions
of the City, its employees, agents or officials shall be considered fully compenSated by a time
extension only and agrees to make no claim for monetary damages for such delays. In no event
shall the Developer be entitled to recover any delay costs caused by the acts or omissions of the
Developer, its employees or agents.
11.2.5. If the Developer believes that it has suffered delays in performing the Work that are
caused by acts or omissions of the City, the Developer may submit a Developer Change Request
with detailed justifications acceptable to the City. Failure of the Developer to comply with all
requirements shall constitute a waiver of any claim for damages resulting from such delays.
11.3 Force Account Work.
11.3.1 In situations where the cost or time for performing a required change cannot be adequately
defined or agreed upon but the changed Work must proceed, the City may direct the Developer to
perform the Work on a Force Account basis. Adjustment shall be determined on the basis of
reasonable expenditures and savings of those performing the change in the Work including, in
case of an increase in the Contract Amount, an allowance for overhead and profit which shall not
exceed the allowance described in' 11.4.7 below. In such case, the Developer shall keep and
present, in such form as the City may prescribe, an itemized detailed accounting together with
appropriate supporting data of all of the costs described in Section 11.4.1 through Section 11.4.4
which clearly distinguishes the cost of changed Work from base contract Work. Information which
~B4-O3.doc **DB4 Page 36
shall be required on these forms includes an itemization of all costs for labor, materials and
equipment rental and total costs to date for force account work. The Developer shall include hours
worked, rates of pay, names and job classifications for all workers and size, type, identification
number, rental rate and hours of operation for equipment.
11.3.2 Unless otherwise provided in the Contract Documents, costs for the purposes of Force
Account Work shall be itemized daily on Daily Force Account Forms provided by the City which are
signed by the Developer and the City. Such costs shall form the basis for determining the
maximum amount to be paid the Developer, but this amount may be reduced where necessary to
take into account the cost of base contract Work, Work included in approved Change Orders, Work
described in Work Directive Changes, idle time for workers and/or equipment when work could
have been performed in other locations or the number of workers or amount of equipment provided
exceeds the number or amount required to perform the Work, unsatisfactory Work or Work which
may be performed concurrently with the changed Work and which cannot be easily segregated
from the changed Work. The worker hours, equipment hours, and materials installed shall be
logged on the City's Daily Construction Log form for every day the work is performed.
11.4 Contract Sum Determination
11.4 In no event shall the charge or credit to the City associated with any change exceed the
sum of the following:
11.4.1 Direct Labor. Actual net direct increase or decrease in the cost of the Developer's labor for
all work associated with the change. Developer's labor shall be limited to Davis-Bacon Act work
categories or other labor (including salaried field personnel) that perform the individual change in
Work full-time. For shop work, the direct labor includes workers who work directly on the item
being manufactured or operators of equipment being used to handle items being manufactured.
11.4.2 Labor Burden. Developer's actual costs for worker's compensation and liability insurance,
payrOll taxes, social security and employees fringe benefits (including employer paid health
insurance) imposed on the basis of payrolls. This burden must reflect the variability of some
burdens, i.e., social security. The burden shall include all small tools which cost less than $200
apiece.
11.4.3 Direct Material, Supplies, Installed Equipment. Actual net direct cost of materials, supplies
and equipment incorporated in or consumed by the Work. If actual costs are not available, the cost
shall be the lowest commercially available price including all discounts and rebates and all
applicable taxes. Cost shall be based on buying the material, supplies and equipment in the
largest practical quantity to receive quantity discounts.
11.4.4 Equipment. Actual net cost to the Developer of owned and/or rented equipment other than
small tools, to be determined using the following method(s):
(1) Owned equipment operating costs shall be determined using accepted
industry standard forms and methods for "Owning and Operating Equipment" as
described by the U.S. Army Corps of Engineers (CO'E) in its latest edition of the
"Construction Equipment Ownership and Operating Expense Schedule, Region V"
(Document No. EP 1110-1-8, Volume 5).
~)B4-O3.doc **DB4 Page 37
(2) Rental equipment costs shall be determined using actual invoiced rates less
all discounts for bare equipment rental. Operating costs will be determined based on
rates in the above-cited C.O.E. manual.
(3) Mobilization/demobilization costs will be paid if the equipment is mobilized
exclusively for Work described in a change requested by the City or a Change Order.
If the equipment is used on base contract work, no mobilization or demobilization
cost will be paid. Mobilization/demobilization cost will be based on using the least
expensive means to mobilize or demobilize. Equipment shall be obtained from the
nearest available source. When the least expensive methods are used, then costs
shown in the actual invoice will be the basis for pricing.
11.4.5 Bonds, Insurance, Permits and Taxes. Actual increases or decreases in the cost of
premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the
Work.
11.4.6 Subcontract Costs. Net cost of Subcontractor work at any tier, provided that the cost of the
Subcontractor is determined in accordance with the above requirements. When possible, the
Developer shall obtain quotes from two or more Subcontractors.
11.4.7 Overhead and Profit.
(1) Ten percent (10%) of the sum of Section 11.4.1 through Section 11.4.5
above, to cover a profit for Work performed by that Developer or Subcontractor.
(2) Two percent (2%) of Section 11.4.6 above to cover Developer's and
Subcontractor's overhead and profit for work performed by the Developer or
Subcontractor.
(3) Neither the Developer nor any Subcontractor, nor the City in the case of a
credit, will attempt to apply these percentage adjustments in a way which would
pyramid either the cost or credit because a Subcontractor or Subc°ntractors at any
tier are involved.
11.4.8 Totals as Equitable Adjustment. The Developer agrees that the total of the above
constitutes an equitable adjustment for any and all damages resulting from a change or due to
delay or disruption caused by the City. The Developer's choice of idling and Down Time shall not
constitute a City's cause for delay or disruption.
11.5 Cost and Pricing Data
11.5.1 Certificate of Current Cost or Pricin.q Data. The Developer shall submit a Certificate of
Current Cost or Pricing Data with any agreed upon Contract Price adjustment, but prior to the
execution of a Change Order for the work, in the following format:
'~B4-03.doc **DB4 Page 38
Certificate of Current Cost and Pricing Data
This is to certify that, to the best of my knowledge and belief, the cost
of pricing data submitted in writing to the City in support of
* are accurate, complete, and current as of
** and represent the best prices available at the time the work is
required from suppliers and Subcontractors. This certification !ncludes
the cost of pricing data supporting any advance agreements and
forward pricing rate agreements between the °ffer or and the City that
are part of the proposal.
Firm
Name
Title
Date
* IdentifY the appropriate number of the Change Notice.
** Date when pricing negotiations were concluded and price
agreement was reached.
*** Date of signing, which should be as close as practicable to the
date when the price neg°tiations were concluded and price
agreement reached.
11.5.2 Vendor Statements. The Developer shall submit in support of all items which are not unit
prices or lump sum prices established by the Contract, statements by the affected vendors that the
prices are not in excess of those previously charged to the City or the supplier's regular
commercial customers for the same items.
11.5.3 Price Reductions for Defective Costs or Pric n.q Data. If it is later determined that pricing
adjustments to the Contract were not correct due to incomplete or inaccurate pricing data by the
Developer or any SUbcontractor or supplier or that lower prices were readily available, the price
shall be reduced accordingly and the Contract modified by a Change Order.
11.6 Variation in Quantity of Unit Priced Items:
Where the quantity of a unit-priced item in this Contract is an estimated quantity and the actual
quantity of the unit~priced item varies more than 25 percent above or below the estimated quantity,
an equitable adjustment in the Contract Price may be made by a written Change approVed by the
Developer and the City. The equitable adjustment shall be based upon any increase or decrease
in cost due solely to the variation above 125 percent or below 75 percent of the estimated quantity.
The City at any time after the aWard of the Contract, may delete Bid items, provided that the total
of such deletions does not exceed twenty five percent (25%) of the total Contract Price, and such
deletions will not justify an increase in other Bid prices, if the quantity variation is such as to cause
an increase in the time necessary for completing the Work the Developer may request in writing,
an extension of time only.
~)B4-03.doc ~*DB4 Page 39
ARTICLE 12
COMPENSATION
12.1 The initial payment provided below shall be made upon execution of this Part 2
Agreement and credited to City's account.
12.2 Subsequent payments for Basic Services and Additional Services provided for in this Part
2 Agreement shall be made as set forth in Article 14.
12.3 Payments due the Developer under this Part 2 Agreement which are not paid when due
shall bear interest from the date due at a rate of 6% APR.
12.4 The City shall compensate the Developer in accordance with this Article and the other
provisions of this Part 2 Agreement as described below:
PAYMENT shall be made to the Developer by submitting a standard invoice to the
City detailing work performed during the City's billing cycle. These invoices will be deducted
from the agreed to $7,306,003 (Seven Million Three Hundred Six Thousand Three Dollars) sum
minus an initial payment of $170,607.35 (One Hundred Seventy Thousand Six Hundred Seven
Dollars and Thirty Five Cents) for Part I of the two part Contract. Any remaining balance will be
forward to the Developer upon the City receiving Certificate of Occupancy.
12.4.4 FOR ADDITIONAL SERVICES, compensation Shall be based on the formula in
Section 11.4.
ARTICLE 13
WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR
ACCEPTANCE OF DEFECTIVE WORK
13.1 Warranty:
13.1.1. The Developer warrants and guarantees to City that all Work, whether supplied, furnished,
installed, provided, or performed by Developer, a Subcontractor, or Supplier, will be in accordance
with the Contract Documents and will not be Defective. All Defective Work, whether Or not in place,
must be rejected, corrected or accepted as provided in this Article 13. Work shall be performed in a
skillful and workmanlike manner. Except where longer periods of warranty are indicated for certain
items, Developer warrants Work, whether furnished, installed, provided, performed or supplied by
Developer, a Subcontractor or Supplier, to be free from faulty materials and workmanship for a
period of not less than one year from date of Substantial Completion, which one year period shall
be covered by the Maintenance Bond and Payment Bond as specified in the Contract Documents.
Landscaping replacement shall be warranted for two growing seasons.
13:1.2. The Developer, at no additional expense to the City, shall remedy damage to equipment,
the site, or the buildings or the contents thereof which is the result of any failure or defect in the
Work, and restore any work damaged in fulfilling the requirements of the Contract Documents.
~B4-03.doc **DB4 Page 40
13.1.3. With respect to all warranties, express or implied, from Subcontractors, manufacturers, or
Suppliers for Work performed and materials fumished under the Agreement, the Developer shall:
13.1.3.1. Obtain all warranties that would be given in normal commercial practice. To
the extent that the Subcontractor's, manufacturer's, or Supplier's, standard
warranty exceeds the minimum City requirements as set forth in this Article or
elsewhere in the Contract Documents, the Subcontractor's, manufacturer's, or
Supplier's standard warranty shall apply. Otherwise, the Developer shall be
responsible for a two year term under the Maintenance Bond.
13.1.3.2. Require all warranties to be executed, in writing, for the benefit of the City, if
directed by the City; or
13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the City.
13.1.3.4. Assign all warranties and guarantees in writing to the City upon the request of
the City.
13.1.4. Notwithstanding anything to the contrary above, the Developer shall warrant that all
equipment which are incorporated into the Work or any subsystem shall be new, free from liens
and defects in design, have clear title, be free from faulty materials and workmanship, and shall
conform in all aspects to the terms of the Contract Documents, to the drawings issued for
manufacture by the Developer, and shall be in conformance with the Technical Specifications and
Developer's Proposal (except in those instances where the Developer's Proposal has been
amended by subsequent Technical Specifications). Unless the warranty period is otherwise
extended or modified, the following warranty shall apply. If, within fourteen months of the date of a
temporary certificate of occupancy issued by the City, it appears that the equipment or any part
thereof covered by such temporary certificate of occupancy does not conform to the above
warranty and guarantee provisions, and the City so notifies the Developer within a reasonable time
after its discovery, the Developer shall thereupon promptly correct such nonconformity to the
satisfaction of the City, at the Developer's sole expense; failing which the City may reject the item
and cover by purchasing substitute items or the City may proceed to make corrections or
accomplish the Developer's performance by the most expeditious means available, the cost of
cover or correction shall be charged to the Developer. With respect to any equipment which is
covered by warranty from the manufacturer, the warranty under this Section shall be limited to the
terms of such warranty provided that Developer has assigned the warranty to the City. The City
shall not disapprove of any warranty which is standard in the industry for such equipment.
13.1.4.1. The preservation, packaging, packing, and marking, and the preparation for,
and method of, shipment of such equipment shall conform with the
requirements of the Contract Documents.
13.1.4.2. When return, corrections, or replacement is required, transportation charges
and responsibility for the supplies and equipment while in transit shall be
borne by the Developer.
~B4-03.doc *'DB4 Page 41
13.1.5. In addition to the foregoing, in the event that any single component in the Work
experiences failures during the warranty period such that the number of failures under normal
service conditions exceeds ten percent (10%) of the Work population of that component, the
Developer shall perform a design defects analysis. If the analysis shows the component design to
be defective, the component shall be redesigned, and the entire population of that component shall
be replaced and/or retrofitted.
13.1.6. Whenever there is a conflict between the warranties required by the Contract Documents
and the warranty provided by a Subcontractor, manufacturer or Supplier, the terms and conditions
of the warranty that affords the City the greatest protection shall be binding upon the Developer.
13.1.7. The above warranties or other warranties agreed to by Developer shall not limit the City's
rights under other provisions of this Article with respect to latent defects, gross mistakes, or fraud.
13.1.8. Neither the foregoing nor any provision in the Contract Documents, nor any special
guarantee time limit, shall be held to limit the Developer's liability for defects, to less than the legal
limit of liability in accordance with the law of the place of building.
13.1.9. Any supplies or equipment, or parts thereof, corrected or furnished in replacement under
this Article, shall also be subject to the terms of the warranty provisions herein to the same extent
as supplies and equipment initially delivered. The warranty, with respect to supplies, equipment, or
parts thereof, shall be equal in duration as if initially delivered and shall run from the date of
delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever is
later.
13.2 Access to Work:
The City, other representatives of the City, testing agencies and governmental agencies with
jurisdictional interests shall have access to the Work, at any time for their observation, inspecting
and testing. Developer shall provide proper and safe conditions for such access.
~3.3 Tests and Inspections:
13.3.1. The Developer shall cooperate with material testing persons and firms, and for required
inspections, and compliance and approval tests for the Work performed by the Developer or
his/her Subcontractor(s).
13.3.2. If Laws or Regulations of any public body having jurisdiction require any Work (or part
thereof) to specifically be inspected, tested or approved, the Developer shall assume full
responsibility therefore, pay all costs in connection therewith and furnish the City the required
certificates of inspection, testing or approval. The Developer shall also be responsible for and shall
pay all costs in connection with any inspection or Re-testing required in connection with the City's
acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of
materials or equipment submitted for approval prior to The Developer's purchase thereof for
incorporation in the Work. The cost of all inspections, testing, re-testing and approvals in addition
to the above which are required by the Contract Documents shall be paid by the Developer (unless
otherwise specified). The City will conduct and pay for the conformance tests on materials
~B4-03.doc **DB4 Page 42
installed in-place, and the Developer shall pay for re-testing of all failing and non-conforming
materials thereafter.
13.3.3. All inspections, tests or approvals other than those required by Laws or Regulations of any
public body having jurisdiction shall be performed by professional firms or certified materials
laboratories acceptable to the City.
13.3.4. If any Work (including the work of others) that is to be inspected, tested or approved is
covered without written concurrence of the City, it must, be uncovered for observation. Such
uncovering and testing when required by the City shall be at the Developer's expense.
13.3.5. Neither observations by the City nor inspections, tests or approvals by others shall relieve
the Developer from the Developer's obligations to perform the Work in accordance with the
Contract Documents.
13.4 Uncovering Work:
13.4.1. If any Work is covered contrary to the written request of the City it must, if requested by the
City, be uncovered for the City's observation and replaced at the Developer's expense.
13.4.2. If the City considers it necessary or advisable that covered Work be observed by the City
or ~nspected or tested by others, the Developer, at the Developer's re(l uest, shall uncover, expose
or otherwise make available for observation, inspectio~ or testing as the City may require, that
portion of the Work in question, furnishing all necessary labor, material and ecuipment. If it is
found that such Work is Defective, the Developer shall bear all direct; indirect and consequential
costs of such uncovering, exposure, observation, inspection and testing and of satisfactory
reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys
and other ~)rofessionals), and the City shall be entitled to an appropriate decrease in the Contract
Price.
13.5 City May Stop The Work:
If the Work is defective, or the Developer fails to su ~)ply sufficient skilled workers or suitable
materials or equipment, or fails to furnish or perform the Work in such a way that the completed
Work will conform to the Contract Documents the City may order the Developer to stop the Work,
or any portion thereof, until the cause for such order has been eliminated; however, this right of the
City to stop the Work shall not g~ve rise to any duty on the part of the City to exercise this right for
the benefit of the Developer or any other party.
13.6 Correction or Removal of Defective Work:
If required by the City, the Developer shall promptly, as directed, either correct all Defective Work,
whether or not fabricated, installed or completed, or, if the Work has been rejected by the City,
remove it from the site and replace it with non-defective Work. The Developer shall bear all direct,
indirect and consequential costs of such correction or removal (including but not limited to fees and
charges of engineers, architects, attorneys and other professionals) made necessary thereby.
~B4-03.doc **DB4 Page 43
13.8 Acceptance of Defective Work:
If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to
accept it, the City may do so. The Developer shall bear all direct, indirect and consequential costs
attributable to the City's evaluation of and determination to accept such Defective Work. All
accepted defective Work shall be subject to significant price reduction acceptable to the City.
13.9 City May Correct Defective Work:
If the Developer failS within ten (10) consecutive calendar days after written notiCe of the City to
proceed to correct and to correct Defective Work or to remove and replace rejected Work as
required by the City in accordance with paragraph 13.6, or if the Developer fails to perform the
Work in accordance with the Contract Documents, or if the Developer fails to comply with any other
provision of the Contract Documents, the City may, after seven days' written notice to the
Developer, correct and remedy any such deficiency. In exercising the rights and remedies under
this paragraph the City shall proceed expeditiously to the extent necessary to complete corrective
and remedial action. The City may exclude the Developer from all or part of the site, take
possession of all or part of the Work, and suspend the Developer's services related thereto, take
possession of the Developer's tools, appliances, construction equipment and machinery at the site
and incorporate in the Work all materials and equipment stored at the site or for which the City has
paid the Developer but which are stored elsewhere. The Developer shall allow the City, the City's
representatives, agents and employees such access to the site as may be necessary to enable the
City to exercise the rights and remedies under this paragraph. All direct, indirect and
consequential costs of the City in exercising such rights and remedies will be charged against the
Developer, and a Change Order will be issued by the City incorporating the necessary revisions in
the Contract Price. Such direct, indirect and consequential costs will include but not be limited to
fees and charges of engineers, architects, attorneys and other professionals, all court costs and all
costs of repair and replacement of work of others destroyed or damaged by correction, removal or
replacement of the Developer's Defective WOrk. The Developer shall not be allowed an extension
of the Contract Time because of any delay in performance of the Work attributable to the exercise
by the City of the City's rights and remedies hereUnder, except to the extent the City's actions have
prevented the Developer from completing the Project in a timely manner.
13.10 Unauthorized Work:
Work performed beyond the lines and grades on the Drawings or approved Design Documents,
Construction Documents or Shop Drawings and extra work done without written authorization, will
be considered as unauthorized work, and the Developer will receive no compensation therefore. If
required by the City, unauthorized work will be remedied, removed, or replaced by the DevelOper
at the Developer's expense.
ARTICLE 14
PAYMENTS TO DEVELOPER AND COMPLETION
~B4-03.doc **DB4 Page 44
14.1 Determination of Work Value:
The Work quantities recorded on the City's Daily Construction Log forms shall serve as the basis
for preparation and justification of the progress payments. Payments to the Developer shall be
prepared on the City's Progress Pay Estimate Form on account of Unit Price Work based on the
number of units actually installed complete in place and transferred from the Daily Construction
Logs.
14.2 Application for Progress Payment:
14.2.1.Progress payments shall be made once each month as ~the Work progresses, when the
Developer is performing satisfactorily under the terms of the Contract Documents. Said payments
shall be based upon progress estimates prepared by the City, of the value of work performed and
materials placed in accordance with the Contract Documents and the value of materials on hand in
accordance with this Part 2 Agreement. The amount of the progress estimate to be paid to the
Developer shall be subject to the following:
14.2.1.1 STANDARD RETAINMENT. The City shall make a deduction from the progress
estimate in the amount considered necessary to protect the interests of the City, pursuant to
Section 24-91-103, CRS. That amount to be retained shall be as follows: (a) for contract price of
less than $50,000 the retained amount shall be 10% of the value of the completed work; (b) for
contract price between $50,000 to $1,000,000.00 the retained amount shall be 7% of the value of
the completed work; and, (c) for contract price over $1,000,000.00 the retained amount shall be
5% of the value of the completed work. No further retainment shall be withheld if the Contractor
makes satisfactory progress in the Contract Work. The amount retained shall be in effect until
such time as final payment is made, with the following exceptions:
a) Upon Substantial Completion, the City may reduce the retainment to fifty pement of the
required retainage. In addition to standard retainment, the City shall withhold funds for
claims against the Contractor filed by Subcontractors and Suppliers, pursuant to Section
38-26-107, CRS.
b) Retainment shall apply to direct construction costs, and shall not apply to project soft
costs including design services, permit fees, bonds and insurance premiums.
14.2.2. NO PAYMENT. A progress payment shall not be made when the total value of the work
done since the last estimate amounts is less than $500.00.
1412.3. LUMP SUM ITEMS. All lump Sum Bid items shall be paid on a pro-rata basis determined
by the percentage of the total Work completed or if the Bid item is installed or completed one
hundred percent (100%) in place and accepted by the City.
14.2.4. SUBCONTRACTOR PAYMENTS. in addition to the other requirements regarding
subcontracting the Work, the Developer is responsible for prompt payments to all Subcontractors.
As a minimum, the Developer shall incorporate provisions in all subcontracts to satisfy the following
requirements:
~B4-03.doc **DB4 Page 45
14.2.4.1. The Developer shall make payments to all Subcontractors at least once each
month as the Work progresses, when the Subcontractor is performing satisfactorily under
the terms of the Contract Documents between the Developer and Subcontractor;
14.2.4.2. Payments to Subcontractors shall be based on all moneys due the Subcontractor
under the terms of the contract between the Developer and Subcontractor;
The Developer shall make payments to Subcontractors within 10 days of receipt of the
City's payment to the Developer;
Subcontractors and lower tier Subcontractors shall make payments to their Subcontractors.
according to the requirements above and shall make payments within 10 days of receipt of
payment from the next higher tier.
14.3 Developer's Warranty of Title:
The Developer warrants and guarantees that title to all Work, materials and equipment covered by
any progress pay estimate approved for Payment, whether incorporated in the Project or not. will
pass to the City no later than the time of payment free and clear of all Liens.
14.4 City's Review of Progress Payments,
14.4.1. The City's representative's recommendation of any payment requested in an Application
for Payment will constitute a representation by the City's Representative to the City, based on the
City's Representative's on-site observations of the Work in progress and on the City's
Representative's review of the pay estimate form and the accompanying data and schedules that
the Work has progressed to the point indicated; that to the best of the City's Representative's
knowledge, information and belief, the quality of the Work is in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract
Documents, to a final determination of quantifies and classifications for Unit Price Work in the Bid
Proposal form, and to any other qualifications stated in the recommendation); and that the
Developer is entitled to payment of the amount recommended. However, by recommending any
such payment the City's Representative will not thereby be deemed to have represented that
exhaustive or continuous on-site inspections have been made to check the quality or the quantity
of the Work beyond the responsibilities specifically assigned to the City's Representative in the
Contract Documents or that there may not be other matters or issues between the parties that
might entitle the Developer to be paid additionally by the City or the City to withhold payment to
Developer.
14.4.2. The City's Representative may refuse to recommend the whole or any part of any payment
if, in the City's Representative's opinion, it would be incorrect to make such representations to the
City. The City's Representative may also refuse to recommend any such payment, or, because of
subsequently discovered evidence or the results of subsequent inspections or tests, nullify any
such payment previously recommended, to such extent as may be necessary in the City's
Representative's opinion to protect the City from loss because:
'14.4.2.1. The Work is Defective, or completed Work has been damaged requiring
~B4-03.doc **DB4 Page 46
correction or replacement;
14.4.2.2. The Contract Price has been reduced by Wdtten Amendment or Change
Order;
14.4.2.3. The City has been required to correct Defective Work or complete Work in
accordance with paragraph 13.9.; or,
14.4.2.4. Of the City's Representative's actual knowledge of the occurrence of any of
the events enumerated in Article 15.
The City may refuse to make payment of the full amount recommended by the City's
Representative because claims have been made against the City on account of the Developer's
performance or furnishing of the Work or Liens have been filed in connection with the Work or
there are other items entitling the City to a set-off against the amount recommended, but the City
must give the Developer immediate wdtten notice stating the reasons for such action.
14.5 Substantial Completion:
14.5.1. The date when the Work has progressed to the point where it can be utilized for the
purposes for which it is intended, as evidenced by the issuance of a Certificate of Occupancy.
14.5.2. When the Developer considers the entire Work ready for its intended use, the Developer
shall coordinate With the City an inspection of the Work and conduct such tests as required to
ensure the Work meets or exceeds all Performance Standards to help determine the status of
completion. If the City does not consider the Work Satisfactorily complete, the City shall notify the
Developer in writing giving the reasons therefore. There shall be a Punch List of the items to be
completed before final inspection and final payment At the time of delivery of the completed
punch list items, the City must conduct a final inspection and upon acceptance by the City, the
Developer shall deliver a fully executed Claim Release form to facilitate the project closure.
14.6 Partial Utilization:
Use by the City of any finished part of the Work, which has specifically been identified in the
Contract Documents, or which the City and the Developer agree constitutes a separately
functioning and useable part of the Work that can be used by the City without significant
interference with the Developer's performance of the remainder of the Work, may be accomplished
prior to Final Completion of all the Work subject to the following:
a) Prior to such use by the City, the City shal have made all applicable payments with respect to
such portion of the Work desired to be used. The City shall be responsible for any damage sue to
such' prior use prior to completion of the balance of the Project.
14.6.1. The City at any time may request the Developer in writing to permit the City to use any
such part of the Work which the City believes to be ready for its intended use and substantially
complete. If the Developer agrees, the Developer will certify to the City that said part of the Work
is substantially complete.
~)B4-03.doc **DB4 Page 47
14. 7 Final Inspections:
Upon written notice from the Developer that the entire Work or an agreed portion thereof is
complete, the City will make a final inspection with the Developer and will notify the Developer in
writing of all particulars in which this inspection reveals that the Work is incomplete or Defective.
The Developer shall immediately take such measures as are necessary to remove and eliminate
all such deficiencies. All deficiencies or incomplete Work items shall be recorded by the City
Project Inspector on a Punch List Sheet(s) and distributed to the Developer and the City
immediately.
14.8 Final Progress Payment:
14.8.1. After the Developer has completed all such corrections to the.satisfaction of the City and
delivered all maintenance and operating instructions, schedules, guarantees, as-built
documentation and other documents - all as required by the Contract Documents, and after the
City has indicated that the Work is acceptable, the Developer shall deliver to the City a fully
executed and notarized Claim Release Form and the City will advertise for project closure and
release of the final retainment. The final pay estimate will consist of retainment amount only. Final
payment will be released following a thirty (30) day waiting period from the date of the second
publication of the advertisement for final settlement and closure if no verified claim has been filed
with the City.
14.9 Settlement Date, Notice to Subcontractors, Acceptance and Final Payment:
14.9.1 If, on the basis of the City's observation of the Work during construction and final inspection,
and the City's review of the final progress Payment and accompanying documentation - all as
required by the Contract Documents, the City's Representative represents to the City that the Work
has been completed and the City is satisfied that the Work has been completed and the
Developer's other obligations under the Contract Documents have been fulfilled, the City shall
cause to be published on two (2) consecutive weeks in the weekly editions of the Aspen Times, a
public notice setting a final settlement date; which said settlement date shall be at least ten (10).
days after the second publication. Said notice shall advise all persons, co-partnerships,
associations of persons, companies, or corporations that have furnished labor, provisions,
materials, team hire, sustenance, or other supplies used or consumed by Developer or his
Subcontractor(s), that they may file a claim with the City, at any time up to and including the time of
final settlement. Upon filing of any such claim, the City shall withhold from retainment withheld in
accordance with the Contract Documents, to insure the payment of said claims until the same have
been paid or such claims as filed have been withdrawn, such payment or withdrawal to be
evidenced by filing with City a receipt in full or an order for withdrawal in writing and signed by the
person filing such claim or his duly authorized agents or assigns. Such funds shall not be withheld
longer than ninety days following the date fixed for final settlement as published unless an action is
commenced within that time to enforce such unpaid claim and a notice of Lis Pendens is filed with
the City. At the expiration of such ninety day period, the City shall pay to Developer such moneys
and funds as are not subject of suit and Lis Pendens notices and shall retain thereafter, subject to
the final outcome thereof, only such .balance of funds to insure the payment of judgments which
may result from such suit.
~B4-03.doc **DB4 Page 48
14.9.2. If, the remaining balance to be held by the City for Work not fully completed or corrected is
less than the retainage set forth at paragraph 14.2., and if Bonds have been furnished as required
in Article 5, the written consent of the surety to the payment of the balance due for that portion of
the Work fully completed and accepted shall be submitted by the Developer to the City. Such
payment shall be made under the terms and conditions governing final payment, except that it shall
not constitute a waiver of claims.
14,10 Developer's Continuing Obligation:
The Developer's obligation to perform and complete the Work in accordance with the Contract
Documents shall be absolute. Neither recommendation of any progress or final payment by the
City, nor the issuance of a certificate of Substantial Completion, nor any payment by the City to the
Developer under the Contract Documents, nor any act of acceptance by the City nor any failure to
do so, nor any review and approval of a Shop Drawing or sample submission, nor the issuance of
a notice of acceptability by the City's Representative pursuant to paragraph 14.9, nor any
correction of Defective Work by the City will constitute an acceptance of Work not in accordance
with the contract Documents or a release of the Developer's obligation to perform the Work in
accordance with the Contract Documents.
14.11 I. iquidated Damages:
14.i 1.1. TIME FOR COMPLETION: It is hereby underStood and mutually agreed, by and between
the Developer and the City, that the date of beginning Work and the time of completion as
specified herein are essential conditions of the Agreement. The Developer agrees that said Work
shall be prosecuted regularly, diligently, and at such rate of progress as will ensure completion
within the time(s) specified. It is expressly understood and agreed, by and between the Developer
and the City, that the time(s) for completion of the Work described herein are reasonable time(s)
for the completion of the Work, taking into consideration the average climatic conditions prevailing
in the locality of the Work.
14.11.2. TIME IS OF THE ESSENCE TQ THE AGREEMENT: It is further agreed that time is of
the essence in completing the Work, and that the Project Work Schedule referenced in Article 6 -
Developer's Responsibilities and the Submittal Schedule referenced at paragraph 6.5. and all
dates set forth therein and where in the Contract Documents, an additional time is allowed for the
completion of the Work, the new time limit fixed by such extension shall be of the essence of the
Contract.
14.11.3. LIQUIDATED DAMAGES: Substantial Completion of the Construction Phase are of
paramount importance to the City. If any portion of the Work is not completed in accordance with
any time extensions granted by the City, the City will suffer damage, the extent of which will be
impractical and extremely difficult to estimate accurately. Therefore, as part of the consideration for
executing the Contract, it is hereby agreed that'the Developer shall pay to the City the amounts
specified in the Liquidated Dama.qes Form included in the Contract Documents. This particular
provision shall not be construed as a penalty upon said Developer for failing fully to complete said
Work as agreed in the Proposal and Contract Documents nor is it intended, but as Liquidated
Damages to compensate the City for all costs incurred as a result of such breach of Contract.
~B4-03.doc *'DB4 Page 49
14.11.4. DELAYS IN WORK COMPLETION OF CONSTRUCTION PHASE: Subject to the terms
of "Excusable Delays", as contained in Section 14.11.6. of this Part 2 Agreement, Developer
expressly agrees to pay the City as a reasonable estimate of just compensation for damages
contemplated with the clause, the amount set forth in the Liquidated Damages Form for each
consecutive calendar day that Substantial Completion is delayed in the Construction of the project.
In no event shall the total amount of liquidated damages exceed twenty percent (20%) of the total
Contract Price for the Construction.
14.11.5. DELAYS IN SUBMITTAL OF AS-BUILT DOCUMENTATION: Should the Developer fail
to make delivery of the as-built documentation covered in the Contract Documents prior to release
of the final payment, it shall pay liquidated damages to the City the amounts equal to preparation
cost of the As-Built drawings by the City and its engineers and surveyors.
14.11.6. EXCUSABLE DELAYS - FORCE MAJEURE: If, by reason of Force Majeure, any party
hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement
then such party shall give notice and full particulars of such Force Majeure in writing to the other
party within a reasonable time after occurrence of the event or cause relied upon, and the
obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be
suspended during the continuance of the liability then claimed, but for no longer period, and any
such party shall remove or overcome such inability with all reasonable dispatch. The term Force
Majeure as employed herein, shall mean acts of God, strikes, lockouts, or other industrial
disturbances, acts of public enemy, orders of any kind of the Government of the United States or
the State Of Colorado or any political subdivision, except the City, or any civil or military authority,
insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods,
washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions,
breakage or accidents to machinery, pipelines, or canals, or other causes not reasonably within the
control of the party claiming such inability. It is understood and agreed that the settlement of strikes
and lockouts shall be entirely within the discretion Of the party having the difficulty, and that the
above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not
require the settlement of strikes and lockouts by acceding to the demands of the opposing party or
parties when such settlement is unfavorable to it in the judgment of the party having the difficulty.
14.11.7. CUMULATIVE REMEDY: The liquidated damages referred to herein are intended to be
and are cumulative and shall be in addition to every other remedy now or hereafter enforceable at
law, in equity, by statute, or under contract.
ARTICLE 15
SUSPENSION OF WORK AND TERMINATION
15.1 City May Suspend Work:
The City may, at any time and without cause, suspend the Work or any portion thereof for a period
of not more than sixty days by notice in writing to the Developer and will fix the date on which work
will be resumed. The Developer shall resume the Work on the date so fixed. The Developer shall
be allowed an increase in the Contract Price or an extension of the Contract Time, or both if the
Consecutive Calendar Days are used to complete the Work, directly attributable to any suspension
if the Developer makes an approved claim therefor as provided in Article 11. Other Work
~B4-03.doc **DB4 Page 50
suspensions such as delayed start or phased construction shall not entitle the Developer to any
compensation of payment or time.
15,2 City May Terminate:
Upon the occurrence of any one or more of the following events:
15.2.1 .If the Developer commences a voluntary case under any chapter of the Bankruptcy
Code (Title II, United States Code), as now or hereafter in effect, or if Developer takes any
equivalent or similar action by filing a petition or otherwise under any other federal or state
law in effect at such time relating to the bankruptcy or insolvency;
15.2.2.1f a petition is filed against Developer under any chapter of the Bankruptcy Code as
now or hereafter in effect at the time of filing, or if a petition is filed seeking any such
equivalent or similar relief against Developer under any other federal or state law in effect at
the time relating to bankruptcy or insolvency and such petition is not discharqed within 60
days of the filing thereof;
15.2.3.1f the Developer makes a general assignment for the benefit of creditors;
15.2.4.1f a trustee, receiver, custodian or agent of Developer is appointed under applicable
law or under contract, whose appointment or authority to take charge of property of
Developer is for the purpose of enforcing a Lien against such property or for the purpose of
general administration of such property for the benefit of Developer's creditors;
15.2.5.1f the Developer admits in writing an inability to pay its debts generally as they
become due;
15.2.6.1f the Developer persistently fails to perform the Work in accordance with the
Contract Documents (including but not limited to, failure to supply sufficient skilled workers
or suitable materials or equipment or failure to adhere to the progress schedule established
under paragraph 2.9 as revised from time to time);
15.2.7.1f the Developer disregards Laws or Regulations of any public body having
jurisdiction;
15.2.8.1f the Developer disregards the authority of Architect; or,
15.2.9.1f the Developer otherwise violates in any substantial way any provisions of the
Contract Documents:
The City may, after giving the Developer (and the surety, if there be one) fifteen (15) days written
notice and the opportunity to cure the default (or if the default of the Developer cannot be cured
within fifteen (15) days, then such reasonable time necessary in order to cure the default) and to
the extent permitted by Laws and Regulations, terminate the services of Developer, exclude the
Developer from the site and take possession of the Work and of all the Developer's tools,
appliances, construction equipment and machinery at the site and use the same to the full extent
they could be used by the Developer (without liability to the Developer for trespass or conversion),
~B4-03.doc **DB4 Page 51
incorporate in the Work all materials and equipment stored at the site or for which the City has paid
the Developer but which are stored elsewhere, and finish the Work as the City may deem
expedient. In such case the Developer shall not be entitled to receive any further payment until the
Work is finished. If the unpaid balance of the Contract Price exceeds the direct, indirect and
consequential costs of completing the Work (including but not limited to fees and charges of
engineers, architects, attorneys and other professionals and court and arbitration costs) such
excess will be paid to the Developer. If such costs exceed such unpaid balance, the Developer
shall pay the difference to the City. Such costs incurred by the City will be approved as to
reasonableness by the City and incorporated in a Change Order, but when exercising any rights or
remedies under this paragraph the City shall not be required to obtain the lowest price for the Work
performed.
15.2.10. Where the Developer's services have been so terminated by the City, the termination will
not affect any rights or remedies of the City against the Developer then existing or which may
thereafter accrue. Any retention or payment of moneys due the Developer by the City will not
release the Developer from liability.
15.2.11. Upon fifteen (15) days' written notice to the Developer, the City may, without cause and
without prejudice to any other right or remedy, elect to abandon the Work and terminate the
Contract. In such case, the Developer shall be paid for all Work executed and any expense
sustained plus reasonable termination expenses.
15.3 Developer May Stop Work or Terminate:
If, through no act or fault of the Developer, the Work is suspended for a period of more than Sixty
days by the City or under an order of court or other public authority, then the Developer may, upon
fifteen (15) days written notice to the City, terminate the Contract and recover from the City
payment for all Work executed and installed in place and any expense sustained plus reasonable
termination expenses. In addition, if the City defaults under the Contract Documents and remains
in default for sixty (60) days after delivery of notice thereof from Developer without a cure having
been made, then the Developer may upon written notice to the City terminate the Contract and
recover from the City payment for all Work executed and installed in place and any expense
sustained plus reasonable termination expenses. The provisions of this paragraph shall not relieve
the Developer of the obligations under Article 6 to carry on the Work in accordance with the
progress schedule and without delay during disputes and disagreements with the City.
15.4. Termination of Professional Design Services.
' P. rior to termination of the services of the Architect or any other design professional
designated in this Part 2 Agreement, the Developer shall identify to the City in writing another
architect or other design professional with respect to whom the City has no reasonable objection,
who will provide the services originally to have been provided by the Architect or other design
professional whose services are being terminated.
~B4-03.doc **DB4 Page 52
ARTICLE 16
MISCELLANEOUS
16. f Nondiscrimination
During the performance of this Contract, the Developer agrees as follows:
'16.1.1. The Developer will not discriminate against any employee or applicant for em~)loyment
because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being
handicapped, a disadvantage~ person, or a disabled or Viet Nam era veteran. The Developer will
take affirmative action to insure that applicants are employed, and that employees are treated
during employment without regard to their race, color, religion, sex, national ongin, sex. age, sexual
orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such
action shall include, but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Developer agrees to post
in conspicuous places, available to employees and applicants for employment, notices to be pro-
vided setting forth the previsions of this nondiscrimination clause.
16.1.2. The Developer, with regard to the Work performed by it during the Contract, shall not
discriminate on the grounds of race, color, religion, sex, national origin, sexual orientation, age,
marital status, being handicapped, a disadvantaged oerson, or a disabled or Vier Nam era veteran
in the selection and retention of Subcontractors, including procurements of materials and leases of
equipment.
16.1.3. The Developer will, in all solicitations or advertisements for employees placed by or on
behalf of the Developer, state that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, national origin, sexual orientation, age, marital status,
being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran.
16.1.4. In all solicitations either by competitive bidding or negotiation made by the Developer for
work to be performed under a subcontract, including procurements of materials or leases of
equipment, each potential Subcontractor or Supplier shall be notified by the Developer of the
Subcontractor's obligations under this Contract and the regulations relative to nondiscrimination on
the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status,
being handicapped, a disadvantaged person, or a disabled or Vier Nam era veteran.
16.1.5. The Developer will send to each labor union or representative of workers, with which it has
a collective bargaining agreement or other contract or understanding, a notice to be provided
advising the said labor union or workers' representatives of the Developer's commitments under
this section, and shall post copies of the notice in conspicuous places available to employees and
applicants for employment.
16.2 Giving Notice:
Whenever any provision of the Contract Documents requires the giving of written notice, it will be
deemed to have been validly given if delivered in person to the individual or to a member of the
~B4-03.doc **DB4 Page 53
firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered
or certified mail, postage prepaid, to the last business address known to the giver of the notice.
16.3 Computation of Time:
16.3.1. When any period of time is referred to in the Contract Documents by days, it will be
computed to exclude the first and include the last day of such period. If the last day of any such
period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable
jurisdiction, such day will be omitted from the computation.
16.3.2. A consecutive calendar day of twenty-four hours measured from midnight to the next
midnight shall constitute a day. A working day is any day; Monday through Friday of each week,
also called business day.
16.4 Generak
Should the City or the Developer suffer injury or damage to person or property because of any
error, omission or act of the other party or of any of the other party's employees or agents or others
for whose acts the other party is legally liable, claim will be made in writing to the other party within
a reasonable time of the first observance of such injury or damage. The provisions of this
paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable
statute of limitations or repose.
16.4.1. The duties and obligations imposed by this Part 2 Agreement and the dghts and remedies
available hereunder to the parties hereto, and, in particular but without limitation, the warranties,
guarantees and obligations imposed upon the Developer by this Part 2 Agreement, and all of the
rights and remedies available to the City thereunder, are in addition to, and ara not to be construed
in any way as a limitation of, any rights and remedies available to any or all of them which are
otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by
other provisions of the Contract Documents, and the provisions of this paragraph will be as
effective as if repeated specifically'in the Contract Documents in connection with each particular
duty, obligation, dght and remedy to which they apply: All representations, warranties and
guarantees made in the Contract Documents will survive final payment and termination or
completion of the Agreement.
16.5 Independent Contractor Status:
It is expressly acknowledged and understood by the parties that nothing in this agreement shall
result in, or be construed as establishing an employment relationship. The Developer shall be, and
shall perform as, an independent the Developer who agrees to use his best efforts to provide the
Work on behalf of the City. No agent, employee, or servant of the Developer shall be, or shall be
deemed to be, the employee, agent or servant of the City. The City is interested only in the results
obtained under the Contract Documents. The manner and means of conducting the Work are
under the sole control of the Developer. None of the benefits provided by the City to its employees
including, but not limited to, worker's compensation insurance and unemployment insurance, are
available from the City to the employees, agents or servants of the Developer. The Developer shall
be solely and entirely responsible for its acts and for the acts of the Developer's agents,
employees, servants and Subcontractors during the performance of the Agreement. THE
~B4-03.doc **DB4 Page 54
DEVELOPER, AS AN INDEPENDENT DEVELOPER, SHALL NOT BE ENTITLED TO
WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL
AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE AGREEMENT.
16.6 Prohibited Interest:
No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass
Village shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.
· 16,7 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest:
The Developer warrants that no person or selling agency has been employed or retained to solicit
or secure this Agreement upon an agreement or understanding for a commission, percentage,
brokerage, or contingency fee, excepting bona fide employees or bona fide established
commercial or selling agencies maintained by the Developer for the purpose of securing business.
16.7.1. The Developer agrees not to give any employee or former employee Of the City a gratuity
or any offer of employment in connection with any decision, approval, disapproval,
recommendation, preparation of any part of a program requirement or a purchase request,
influencing the content of any specification or procurement standard, rendering of advice,
investigation, auditing, or in any other advisory capacity in any proceeding or application, request
for ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement or to any solicitation or proposal therefor.
16.7.2. It shall be a material breach of the Agreement for any payment, gratuity, or offer of
employment to be made by or on behalf of a SubcOntractor under a contract to the prime
Developer or higher tier Subcontractor or any person associated therewith, as an inducement for
the award of a Subcontract or order. The Developer is prohibited from inducing, by any means, any
person employed under this Agreement to give up any part of the compensation to which he/she is
otherwise entitled. The Developer shall comply with all applicable local, state and federal "anti-
kickback" statutes or regulations.
16.8 Payments Subject to Annual Appropriations:
If the Agreement awarded 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, the
Developer, if it so requests, will be advised as to the status of funds appropriated for services or
materials and shall not be obligated to provide services or materials for which funds have not been
appropriated.
16.9 DeveloperAcceptance:
16.9~1. No action shall be maintained by Developer, its successors or assigns, against the City on
any claims based upon or arising out of this Agreement or out of anything done in connection with
this Agreement unless such action shall be commenced within 180 days after the date approval of
the final progress payment hereunder, or within 180 days of the termination of this Agreement.
~B4-03.doc **DB4 Page 55
16.10 Successors and Assigns
This Agreement and all of the covenants hereof shall inure to the benefit of and be bidding upon
the City and the Developer respectively and their agents, representatives, employees, successors,
assigns and legal representatives. Neither the City nor the Developer shall have the right to assign,
transfer or sublet his or her interest or obligations hereunder without the written consent of the
other party.
16.11 Third Parties
This Agreement does not and shall not be deemed or construed to confer upon or grant to any
third party or parties, except to parties to whom the Developer of the City may assign this
Agreement in accordance with the specific written consent, any rights to claim damages or to bring
suit, action or other proceeding against either the City or the Developer because of any breach
hereof or because of any of the terms, covenants, agreements or conditions herein contained.
16.12 Waiver
No waiver of default by either party of any terms, covenants or conditions hereof to be performed,
kept and observed by the other party shall be construed, or operate as, a waiver of any
subsequent default of any of the terms, covenants or conditions herein contained, to be performed,
kept and observed by the other party.
16.13 ContraCt Made in Colorado
The Parties agree that this Agreement was made in accordance with the laws of the State of
Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin
County, Colorado.
16.14 Attorney's Fees
In the event that legal action is necessary to enforce any of the provisions of this Agreement, the
prevailing party shall be entitled to its costs and reasonable attorney's fees.
16.15 Waiver of Presumption
This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and
the parties agree that no construction shall be made or presumption shall arise for or against either
party based on any alleged unequal status of the parties in the negotiation, review or drafting of
this Agreement.
16.16 Severability Clause:
If any provision of the Agreement is subsequently declared by legislative or judicial authority to be
unlawful, unenforceable, or not in accordance with applicable laws, statutes, and regulations of the
United States of America or the State of Colorado, all other provisions of the Agreement shall
remain in full force and effect.
~)B4-03.doc **DB4 Page 56
16.17 Audit and Records
The Developer shall maintain all data and records pertinent to the Work performed under this
Agreement, in accordance with generally accepted accounting principles, and shall preserve and
make available all data and records until the expiration of three {3) years from the date of final
payment under this Agreement, or for such longer period, if any, as is required by applicable
statute or by other articles of the Contract Documents. The authorized representatives of the U.S.
Department of Transportation, Comptroller General of the United States, the State of Colorado and
the City shall have access to all such data and records for such time period to inspect, audit and
make copies thereof during normal business hours. The Developer covenants and agrees that it
shall require that any Subcontractor utilized in the performance of this Agreement shall permit the
authorized representatives of the United States Department of Transportation, the State of
Colorado, and the City, to similarly inspect and audit all data and records of said Subcontractors
relating to the performance of said Subcontractors under this Agreement for the same time period.
16.18 Audit
16.18.1. COST OR PRICING DATA: If the Developer has submitted cost or pricing data in
connection with the pricing of any modification to the Agreement, unless the pricing was based on
adequate price competition, established catalog or market prices of commercial items sold in
substantial quantities to the general public, or prices set by law or regulation, the City or a
representative of the City shall have the right to examine and audit all books, records, documents.
and other data of the Developer (including computations and projections) related to negotiating,
pricing or performing the modification, in order to evaluate the accuracy, completeness, and
currency of the cost and pricing data. In the case of pricing any modification, the authorized
representatives of the U.S. Department of Transportation, and the State of Colorado shall have the
same rights.
16.18.2. AVAILABILITY: The Developer shall make available at its offices at all reasonable times
the materials described in the Contract Documents, for examination, audit, or reproduction, until
three (3) years after final payment under the Agreement, or for any period, if any, as is required by
applicable statute or by other articles of this Agreement.
16.18.3. If this Agreement is completely or partially terminated, the records relating to the Work
terminated shall be made available for three years after any resulting final termination payment.
16.18.4. Records pertaining to appeals under the disputes clause or to litigation or the settlement
of claims arising under or relating to the performance of this Agreement shall be made available
until disposition of such appeals, litigation, or claims.
his Agreement shall not be binding upon the City of Aspen unless duly executed by the
ity Manager or the Mayor of the City of Aspen following a resolution of the Aspen City
ouncil authorizing the City Manager or Mayor to execute the same.
IN WITNESS WHEREOF, the parties agree hereto have executed this Part 2 Agreement on the
date first above written.
ATTESTED BY: CITY OF ,~,SI~EN~,COLORADO .~
Title: ~-4.~,-{ ¢V~&~/~¢~ ,~.~_.~
ENDED,,FOR APPROVAL: APPROVED AS TO FORM:
'- / " / ~e~~'~ -
ATTESTED BY: DEVELOPER:
ASW BURLINGAME PARCEL, D LLC
Note: CeAification of Incorporation shall be executed if Developer is a Corporation. If a
paAnership, the Agreement shall be signed by a Principal a0d indicate title.
~B4-03.doc **DB4 Page 58
CERTIFICATE OF INCORPORATION
(To be completed if Developer is a Corporation)
STATE OF .)
)ss.
COUNTY OF )
On this day of ., 19 , before me appeared
., to me personally known, who,
being by me first duly sworn, did say that s/he is of
and that the seal affixed to
said instrument is the corporate seal of said corporation, and that said instrument was signed
and sealed in behalf of said corporation by authority of its board of directors, and said deponent
acknowledged said instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above
written.
Notary Public
Address
My commission expires:
ASW/agmr-aspPrt2-8-14
~)B4-03.doc **DB4 Page 59
~% ~ P293
Memorandum
To: Mayor Klanderud and City Council
City of Aspen, Colordao
From: Ed Sadler. Assistant City Manager
Troy Rayburn, Project Manager
Steve Bossart, 7Project Manager
Through: Steve Barwick, City Manager
Date: August 25, 2003
RE: Burlingame Ranch Subdivision. Lot 3 '~ Accept or Deny Additional Project
Rems * Approval Of Part II of Contract
Summary / Previous Council Action:
Ar~ached is the contract and information needed for Council to make it's fmal decisions on
approving the Part II contract with ASW ro build the 40 units for Parcel D as approved by Council
on August 5. Council will recall that the City's Developer. ASW Reality Parmers. and City Staff
were to return to Council with two procedural steps that need to be completed: (1) re¥~ew and
select those additional items to the project as proposed by ASW Realty; and (2) approval of
ar~ached resolution author/zinc the Part II Ageement (Contract) Between City of Aspen and
Developer.
Staff has intentionally left blank the Contract' s amount for purposes of determining -- or the need
to factor in -- those additional project items selected by the Council. Staff will add the Council's
project additions to the Contract amount, ha addition, si~ematures will be obtained after a final.
amount has been tabulated. Please note, that Staff w/ll confirm with the City'g Developer that the
final amount is for 39 units, not
Regarding number one noted above, please find enclosed in y >ur information packet a separate
package of information from your Developer and/ts Development Team.
Background Information:
Under the "Discussion" section of this memorandum the City Council will review Staffs
recommendations to the Developer's proposed additions. Staffs approach to accepting or denying
the Developer's recommendati ~ns ts as follows:
Approval -
· If a City Department requested add/nons of the Developer then Staff is reclined to approve; or
· If an unforeseen issue or problem arose then Staff is inclined to approve.
P296
16. Add Bxposed B~ess Stair $15,000 Deny- Developer's responsibility.
Developer should have reasonably
anticipated.
17.1Kedesigm of Building A to
Fit into Grading $ 7,500 Deny - Developer's responsibility.
18. Heating of garage Space $60,960 Deny - Developer's responsibility.
Developer should have reasonably
anticipated.
19. Add 2 Weeks for Winter
Conditions ro Start Date $20,000 Accept - Roiling affect of 2 week
delay in approval of Part ti of
Contract.
20. Solar Hot Water Construction $ I44,000 Deny - Not cost effective.
Would have to redesi~ the
buildings' architectural design ro
accommodate a solar system.
Financial Implications:
Staffs recommended additional kerns total $289,212.00
Additions -
1. Topsoil Stripping $23. 300
2. Rock Excavation Allowance $15,300
3. Additional gite Fill $29,650
4. Colored Concrete Bike Path $31,240
5. Green Building Points $38,370
6. Repair Asphalt Water Main $26,200
7. [ncrease Livable Space $29,227
8. Boulder Walls $38,000
9. Extension of Concrete Wails $31,525
10.Garbage Disposals $ 7,000
11 Winter Delay Cost 2 Weeks $20,00C
TOTAL $289,212.00
If Council should except Grip Strut at $25,000 the revised total = $314,212.00.
The sum of the selected additional project items will be added To the Contract's standing total
~minus the initial payment per Sec. 8.5.2. of Part l of the Contract and invoices for work
performed). After Council reviewed and selected additional desig-n related additions on March 23,
2003, the standing total eq[mled $6,705,650.00 (Part I, Sec. 8.5.2). If CounciI went with just
Staffs approvals, the project additions would revise the Contract amount to reflect $6.994,862.00.
If Council should choose to add Grip Strut at $25,000 the revised Contract amount = $7,0 i9,862.
P295
?. > Exterior Slab on Grade 221,752 Deny - Developer's responsibility,
Developer should have reasonably
anticipa%ed.
$. Repair Asphalt Concrete ar
Water Main Tie-in thru BMC
Further Deviation in Water Main ~26,200 Accept - Water Dept. desired route.
Water Dept. has looked ar other
alternatives and believes going
through BMC West is the best
alternative.
9. Transformer Phone?edestal
Relocation ~ 5,000 Deny - Developer's responsibility.
Dexeloper should have anticipated a
pending issue relocating.
10. Increase Livable Space / Sq. ft. 229,227 Accept- Benefit to City customer or
buyer.
11, Increase Site Boulder Walls
Due to Redesig'n of Fire Truck
Tram Around 238,000 Accept concept, but staff does not
like solution. Developer needs a
different solution.
12. Grip Strut Decking for
Balconies 225,000 Den), - Staff understands that
Council may warn m include due to
very brief conversation from when
Council reviewed and selected their
Developers' first set of projec~
additions.
13. Extension of Concrete Walls
to Undisturbed Suitable Soils
Due to Top Soil Depth $31,525 Accept - Unforeseen cost
14. Garbage Disposals $ 7,000 Accept- Improves unk and
customer / buyer satisfaction.
15. Add Individual Water Meter
to Each Unit $67,000 Den), - Developer's Responsibility,
required.
P297
Conclusion / Recommendation:
Approve Staft's recommended list totaling $289,212.00 for the 1 ] additional items noted above.
City Manager's Comments:
P~98
P~SOLUTION NO. ~ Series of 2003
A PdESOLUTION OF THB CITY OF ASPEN. COLORADO, APPROVING A PART 2
AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND ASW BURLINGAM~
PARCEL D LLC, 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 a Part 2 A~eement between the
City of Aspen, Colorado and ASW Burlingame Parcel D LLC, a copy of which contract is am~exed
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 apart 2 Agreement between the
City of Aspen, Colorado and ASW Burtingame Parcel D LLC, a copy of which is annexed hereto
and hncorporated herein, and does hereby authorize the City Manager of the City of Aspen To
execute said contract on behal£ofthe City of Aspen.
Dated: ,2003.
Helen Kalin I<Janderud, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
m~e and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, ar a meeting held ,2003.
Kathryn S. Koch, City Clerk
JPW-08, 04 2003~G John\word resos Burl~ngame-~arcel-D.doc
P299
ASW Realty Partners Californ,a NewMex,co Colorado
Ed Sadler. Assistant City Manager
City of Aspen
130 S. Galena Street
Aspen, CO 81611
8 - 15 - 03
Re: Bur]Lngame l~nch Lot 3 & McB~de Approval
De~ Ed.
ASW 1Kea]ity Paz~ers is pleased to advise you a~d the City Council that our development team
members. Doug Oreybeal of COY Architects and Ricl-~-d Shaw of DWI, have met with. ][ohn
McBride and the Airport Bnsiness Center Architecraral Review Board and obtained conditional
approval of our Burlingame Ranch Lot 3 development plans. The conditions of approval will
require modifmations to the current design and approved PUD Plan. The most signiScmat
changes are the elimination of anupper dwelling unit on the north elevation of Building A, and a
lim/tation oftbe building hei~at. Please see attached notice of approval for specific conditions.
It will be necessary for CGY to redesign the architectural plans for Building A to reflect the
ABC Architectural Review Board changes. Our stracturaI e%oineer will need to revise the
stractural plans. DWI will need to revise the landscaping plans and prepare revised PUD Plan
documems. RA Nelson will need to prepare revised budgets. These changes will cost a total o£
$25,300 to complete.
These changes will reqmre your authorization as an Additional Service ~.mder section 1.4.1 of
Part I :ontracr. According to section 1.4.1, we can not initiate these changes without your
written authorization.
1120 Lincoln Suite 204
PO Box 770720
Steamboat Springs, CO 80477
-si: 970 871-93'66 · Fax: 9T0 871-9362
P300
In order for these revisions to have as little impact upon the consm~clion schedule as possible
we are proposing ro proceed with the cun-ent architectural plans and PUD Plan approval for
Bu21dings B and C. This will a!low us to obtain a building permit to begin N'adLng for the overal2
site work and begin fotmdations, and Buildings B and C. We wotfld prepare the revisions to the
architectural plans and PUD documents to reflect McBride's changes to Building & gain the
CommurEty Development Dept.'s approval of those plans, record them, and puL! a buildi2g
permit for Building A. (Pre2minary indications from the Community Development Depamnem
are that these changes to the PUD Plans wfI1 be handled administratively.)
These revisions ,,viii also require a chaxtge m the Part 2 Contract. It is our desire to have Part 2
approved by the City Cotmcil reflecting the City Councils recent approval with an addendurn
stating that Part 2 wit be modified to reflect the McBride changes (plans, budget, and
schedtde~. Once the revisions are finalized we can then integrate them ~nto Part 2 Contract.
Please authorize this Additional Service knmediateiy.
Sincerely,
Vince Hooper ~
P301
ASW Realty Partners California ewM × oo Ca o,aoc
Helen Klandemd, Mayor
City of Aspen
130 S. Galena St.
Aspen, CO 81611
8- 18 - 03
P~e: Burlingame Ranch Lot 3 Affordable Housing Pm1 2 Contract
Dear Mayor Klandemd,
ASW Rezlity Partners, a]ong with our developmem mare members, would like to thank
you and the City Council for approval of the Burlingame Ranch Lot 3 Pb~D Plan on Aug.
5, 2003. This approval has allowed us m proceed with the nex~ stages of the Burlingame
Parcel D development.
We are please to present to The City Council Part 2 of the Burlingame Lot 3 Contract. The
Part 2 Contract is attached. We have spent the last several weeks reviewing the Contract
with City staff and have recently obtaLned a~eement with the City staff on the attached
Cofltract. We are presenting it ~o the City Council for finsfl approval and szgma~ure.
There are a couple of additional components to the Contract that I would like to draw the
Council's attention to. First is the revised schedule. As I advised you in our recen~ public
heatings for the approval of the PUD, delays in gaimng approval of the pro['ect have
required us ~o make revisions to the construction schedule. Our curren~ schedule
anticip ares the start o f construction, 8 - 26 - 03. This is immediat ely after the approv aJ
and si~img of the PmX 2 Contract. This later start date puts more of the work into winter
months and winter conditions. 1/Vinter conditions will extend the completion date for the
first building ~o be finished, Building C, to - - ~ - 04 for temporary C.O. The last
building to be finished, Building A now has a ~emporary C.O. set for 9 - 28 - 04. The
final project completion date is scheduled for 10 - 1 - 04. Ou~ previous schedule had a
start date ors - 6 - 03, and a completion date of 8 - 30 - 04. This is a completion delay
of approximately one month.
1120 Lincoln Suite 204
PO Box 770720
Steamboat Sorm§s CO 80477
Yeh 970 871-9366 · Fax: 970 871-9362
P302
The second additional component of the Contract is the budgeT. As you will see in the
attached budget details, the cost of completing the development has increased. This
increase reqmres an explanation. The purpose of separating our the proj eot into two p ar~s.
Part 1 Contract, and Part 2 Contract, was in anticipation of refinements to both the design
and thee budget.
When the initial budget was prepared for Part i it was based upon Conceptual Plans.
These plans are schematic in nature. The work perfonmed in Part 1 has permitted the
desigh~ to be finalized so that the budget can be accurately determined. At each step of
refining the design, we have been able to refine the budget. We have now come to the
point where we can present a firm budget from which we are able to conmmit to
completing the proj eot.
Dming the design refinement process of Part 1 we have discovered areas in the desi~m2 in
which we could save money. These savings have been program,'ned into the desitin. We
have aisc discovered items that the constmcnon costs will be higher than originally
estimated. In addition, there have been reqmremems placed upon the design through the
review process which were not known at the Conceptual Plan. We have attached a report
entitled Burlingame Affordable Housing Budget Variance 2-3-03 to 6-25-03 that details
both these cost savings and the cost additions through our design refinement process.
We have worked hard over the last several months to keep the City staff infonmed of our
budget refinements. In the last severaI weeks we have been able to come to agreement
with the staff' on almost all of our budget changes. As we have refined the budget, we
have presented staff with ourjustifications as to why specific items are necessary. The
staff has !greed with many of these items. Some items they have not. Of those that they
have not, we have been able to accept their position on some. There have been some
items which we feel strongly about and had not been able ~o accept the staffs position.
In the last couple of days we have pushed hard on our development team to figure ont
how to bridge the budget gap, We came to the conclusion that we are able to accep~ all of
the City staffs on~nal recommendations except one. That one item was the rock
excavation alIowance. We re-presented our justifications to the City staff. We are very
pleased to say that today we have been able to reach an agreement with staff on this one
renaming item. We have ageed to include a maximum of $15,000 for rock excavation
as an additionaI budget item. Any unused portion of this $I5,000 will be returned to the
City.
The costs for the other items that we had previously requested as budget additions, but
which staff has not agreed with, will be absorbed by the development team.
1[ have enclosed a regised c6st itemization and justificazions that fo=ned the basis for our
discussions with City staff. We have taken the opportunity to omit those additional items
which we have not gained the staff acceptance of and which we are absorbing. This report
i~ entitled Preliminary Cost Increases from 2-03~03 Submittal Package.
P303
I have also enclosed a revised budget summary, which is similar in fonanat to the Part 1
budget, for a quick and easy comparison between Pan 1 and Part 2 budgets. That
summary is attached as Development Cost (August 15, 2003 ..
We are prepared to explain each of these repons, as wel] as, discuss the justifications for
each individual item with the City Council. However, recc gnizing the time involved in
making such a presentation, it is our preference ro provide you with this detailed
information as backyound and then focus on the single remgming ~ern necessary ro
move forward.
The conclusion is that we have reached a~eemenr with staff on all items and costs
including the $15,000.00 for rock excavation. With the City Council's concurrence of the
staff's recommendations and approval of these additional items, we are prepared to
proceed with the Part 2 Contract and constr~ction activities.
Therefore, we would respectfully request that the City Council approve the Part 2
Contract with the proposed schedule and budget as present herein.
We look forward to meeting with yo~.~ on Aug. 25th ro explain our prop¢ sal as necessary,
answer your ~nestions, and gain fingl approval of Part 2 Contract.
Sincerely,
Vince l-looper
Part 2 Contract
Construction Schedule
Development Cost (August 15, 2003
Preliminary Cost Increases from 2-03-03 Submittal Package
Burlingame Affordable Housing Budget Variance 2-3-03 to 6-25-03
P304
P307
Burlingam¢ P~anch Parcel D--Aspen Colozado
Buildio9 Permit Fees 6
School hT ~act Fee -- 315
6 According to Denise with City ef Aspen 920-50901. (ne prolect is considered
Subsidy) .33=7.88 x 40= $315.15
8/13/03 no road imeact fees v, ee essesee
P306
Development Cost (August 15, 2003]
Burl~ngam¢ Ranch Parcel D--Aspen Colorado
Fatal Buager
at Part I August 15.
Contract 2003 ~evlsea
Sienin¢] Budget ananc~
~ta_rd Cost (RANA Subcontract'
Site Devel¢ :mere (inmal suDm¢~a $ 723,000 $ 728.000 $
Below gradefTuckunder 2arking ~mt~al submittal 1,109 600 1.109.000
=inished Floor Area nitial submitta 2,404000 2 404,000
_anoscap~ng inc,
Adc tional ltemsApproved byCounci Febrear72003 160.565 180,585
Changes aporoveo Dy Staff during Des ~n 327.812 327.612
Adlustmen~ for Final Bidding (conungency offset/ 241.392 241.392
Con[r, actor General Conditions OH & Profit 635,000 666,845 31.845
5 JOtOta~ ~aro Costs 5,031,565 5,632,414 600,849
~Sofl 2osts
~rofess~ona/Fees:
Architecture CGY subcontract
Design Development 82.500 82.500
Construcuon Documents 132,500 132.500
Bid and Negouauor 5.000 5 000
Construction Obserca fion 50000 50,000
Plannin9 and Civil Engineering (Des 9n Workshoo subcomract~
Planning 7%000 71,000
Sun/eying 35.000 35,000
Civil Engineering 54,000 54 000
FieJd/Soil Invesbgatlor AllOWance 25000 25.000
Legal Review 25,000 25,000
Prolect Construction) Managemem 48,710 48,710
Bonos and Insurance" Allowance 175.000 375.000 200.000
Perm~m and Fees Allowance 220.038 265.000 44.962
o, eimbursable Expenses Allowance 25,000 25.000
Total Soft Costs 828,748 1 .t 73:71 o 244.962
Develooer Fee 487.100 487.100.00
Contingency 258,23? 14,699 (243,538/
Total Cost $ 6.708.650 $ 7.307.92~3 $ 602,273~
P3 ~_A. NELSON Preliminary Cost Increases from 2~03-03 S.bmitt~l Package
P310
COTTLE GRAYBEAL YAW
architects
August 14 2003
Troy Rayburn
Project Manager
Burlingame Parcel D
City of Aspen
Troy,
I was able to obtain approval from John McBride and The ABC Architectural Review
Board for the Burlingame Parcel D project with the conditions noted in the attached fax
from John McBride. John said he would send a letter to the City of Aspen incorporating
that language granting approval
The approval was granted with the removal of one unit. resulting m a total unit count of
39 Attached are the following:
1) Final Approval Language faxed to me from John McBride. which he said he
would incorporate into his letter to the City of Aspen
2) John's initial letter to the City of Aspen stating his concerns.
3) My August 6, 220 letter to John Mc Bride responding to his questions per our
phone conversations.
4) Color rendenng presented and approved by John McBride and the ABC
Architectural Review Board.
I will be available to answer any questions at the August 25th City of Aspen Council
meeting. Please g~ve me a cai1 if.you have any questions.
Sincerely,
Principal
ASPEN PostOff~ccDox529 ~asalr CO81621 wwwcgyarchitecrs.com //~Y
ASPEN TELLURIDE VAIL [
I
P311
The ABC Azch[t~cmT-A Review Board does hereby approve ~bar po~o:~, of
"Parcel D' which is ]o~ted on ~C ~ven~ted I~d (~ Quest p~c~l) ~ sasubmiutd
~d red,signed on ~/12/03 by Doug ~aybeJ and ~c~d Shaw. Specific a~eemem~s
~cluded:
aj L~dscaae: 5 new co~onwoods ~i be plated on ~e sou~ side of Vendor
Aven~ ne~io ~ project. ~ey ~11 be a~ 1~ 1 1/2 c~p~ ~ 4~. '~ ~xis~g
~ong VenmOr ~l be repl~ted on ~e site Mong Venmoz, o~ moved elsewhers
.~C if ~epl~fing on ~e site is mot f~s~ble.
b) Eleva~on: Th~ ~edes~ed bull&ag A's firs~ ~mo~ t~ ~ac~s Veamor
be at ~e s~e ~icvat~on as ~s Ero~d floor of B~lding 210 across ~e ~eet
'~ 2' above that floor. To meet ~ height resection, unit A26 h~ been =Iim~nated. ti
approved. ~so, approved {s ~s height ~ola~on of~ 27. 28, 29 where they
30', boca=se ~ey ~s sst back behind o~=r m~ts ~d some d{st~ca ~om Venmor.
c) ~pp=~lc~ ~ Color: ~e new~o~ elavg~on ofB~ldin~ A is approved.
[s o~ ~d~rst~ding ~at the siding colors ~11 be I~s the model w[fl~ a coupls of sage
Nke ~eens or ~ays ~d aa accent red. ~e clad ~bndows ~Jl bca beige color,
d) Roo5 W~le the Coven~rs c~ for black roo~ (simiI~ to o~er b~ld~gs
~ d,e ~C m~d ~e M~oon Creek Employee Hous~g] we ~1i cogent roa color
lighter ~mn ~Be~dge Z~c ~rey' with co,gered ~sred me~ on ~e i2/12 ~r towers
~d balcony roofs for ~chitec~J relief It is presumed ~a~ ~ese ~o colars (or dmker)
~il1 be used ~roughout Ce whole project. If a lighter color is used on Buffings B&C
5~an O~e Be~idge Zinc Grey, ~hen Bufld~g A's roe'f will be black.
~: '-~ ..... Ali vents, ~cks ~d mech~cJ eqmpmem on the roofs must be p~nted
s~ne color as ~e roofs ~hey ~e on. So too, ~e drip 5~ge om ~e ~cia shMI be roof
color.
e) P~kin~: It is ex~emely ~.pon~r to b~inesses on Venmor ~ha~ outdoor
resident ~d gues~ p~king be cle~ly si~ed ~d enforce& ~ ~esr parking for B~I&ng
A, at least, is much f~her a'way ~ 5~e coaveJen~ location of Building 210.
P312
COTT~E GRAYBEAL YA~
A~gust6 ~00~
Mr. Ic hn McBride ?
Aspen Business Center ~,~-~...
303 East viafc~x: 925-2704 ~'" '""~ -"
Aspen, Zo 81611 ~"~ '-" ~"'~
Thank ) ou for ta~ng the time to discuss the concerns you expressed in'your August 4. 2003 letter
[o the Aspen City Council in reg~d to the Buriingame Parcel D project. This ietter is to confirm
the content and conclusions we reached during our discussion to ailow this project to move
forward with your approval. Bo~ The City of Aspen and I understand the approval of the
architectural review c~tree is required. I also understand you will be attendihg our meeung
with the AABC design review co~rtee next Tuesda2 August 126~ at noon. The foliowi=g is a
recount of our discussion, which cc aid be the used as a foundation for a memo,to the Cit~ ef , ~
allow for site grading, drainage and retention ponds We Mil work to
elso discussed the o~don of loc~dng new Cottonwood trees ~Iong me ro~d to
match the adjacent properties. We will study this option.
B ~ ~ur quick analysis, it appears the road in front sf BuiIding 210 is at the
same elevation as the f~st floor on the portion of Bulldog A facing Ventnor.
I understand from you that BuiIding 210 is higher than the road merefore this
is nor an issue for you. We offered ro erect story poles for BuiIding A and in
our latest conversation you felt that would not be necessary.
Building
'.A) The design of the project h~s evolved overtime as we worked our the Mnks. It
was necessary ro redesign the end of Building A facing Ventnor to accommodate
grade changes and the internal garage. The unks in the lower level were
redesi~ed creating the need ro relocate a unh (A26) on an upper level. While
we maybe able to lower the roof over Unh A26 to be under ~e 30 feet height
li~t k is your desire to rnrn the roof to slope the opposite directiofi per me model
and el~nate this unit
B) I understand that you ~e okay with me stair tower element adjacent to Unit A2~
being taller than the 30 feet height I[~t. With the efi~nation of Unit A26 this
stak rower ma) be redttced ~ height. You have requested that t~s item be
reviewed with the ~chkecmral review comrtee for final approval.
C) We underst~d there is a desire t9 have the stair rower f~el more iight ~nd porous. ~_ ~.~
We desire this tower to be enclosed from the weather and the use of gross areas
ivlr. lohn McBride
Aagus~ 6. 2003
Page 2
within any openings :o achieve finis is okay with you Again, you have deferred
final approval to the architectural revrew corm'm~ee.
D) In regards to the number of balconies there are actually more balconies mom as
snown on the model. This is no~ an issue for you.
~,, E] Wa will agree to install a dark color roof on the pornon of Building A that falls
~2~ under your covenanL As you ~xpl~n~d your cov~nam r~qnk~s a dark color roof
because of your pr[~r approvals with PitOn County and th~ White Hors~ Spring
H~m~owners, located abo~ your~ roj~ct, for dark co,or roofs so the build~ngs go
away into the landscaping and ~do not interf~e ~vith air traf~c or views from
F) W~ew alig~em ~s nor a concern ~er
x G Guest paring will be signed, You are co~ortable with this solution.
/ H' Siding colors ~ili be si~lar to those shown on the modal. You ha~e agreed
is appropna:s. We also discussed the window colors. Wa are cmxently showing
~ ( a white clad window because of the residential appe~ance and eas} ma~snanc~.
Lighter color w[ndows will last longer in this climate and are not as hot to the
touch as darker windows because of the raduc~ absor~ don of radfant hgat from
the sun, If this is a concern please let me ~ow, I understand you would be happy
with a beige color window because ~here are no wMte windows ~ the ~BC.
I) We understand you deskre something other ~han skubs plated on Ventnor. We
will :fy to reloca~e exisffng tree in this location and study the option of planting
some Cottonwoods.
The Cky nas made a co~tm~m to you to ~xplore your access reco~endafion.
Yhank you for ~ our time. I hope this ktt~r does reject our conversations. If not please let me
~ow and ~ will make me appropriate modification In the spkk of ~low~ng us to connnue
without any further ~uesdons or concerns I would request th[s 4ocument or a sh~lar document
that clear states the agreement we will be reaching be produced and signed by you and I
you again for your cooperation and warm welcoming to the neighborhood
P~ncipa]
7314
To: The Cky Council
FROM: John McBride
DAT~; Augus: 5, 2003
Today, the ABC Architectura/Review Board met for the hz'st t/me to review the
sire and the plans for Parcel D, which were submitted to us on July 15. Member~ of the
Board who met included: EIJSe Bric~, Chris Ridings, J/m Petrie, John Galambos,
Dick Byme, R/chard Seedorfand myself- 5 architects and 2 budders.
The Bo~rd rea/izod they could review only one building as the rem of the
project is outside the ABC:
Concerns and issues e,'rpressed were as fo//ows. ~
Regarding the S.ite,
x,Ve had to locate the building by Suesun~ras as there are no corner pins.
Also, we had to try to envision the height as there are no story poles £or Building A.
In any case, we reached a general coBsensus 0]2 a couple of issues-
2%) There are many beauttS, d trees on the North side of the site. We wofild like
ro see them saved either in place or if they have ro be moved, placed along Venmor
on the site. We will work with you ozz relocating. If there is no way to keep them there,
we wiLl fred another location w/rhi~ the ABC.
B) Since we cannot exactly determine the ~ound 15oor etevaSon, we would
require that the lowest floor ofBu/Jdin§ A be no higher than 2' above the fLrst door of
Building 210 wldch is r~ght across the streeL
R_esardin~ the Bnildin~
Everyone was surprised to see that the plans for Building A were different
f~orn the model Everyone liked the model better for sevaral reasons: It is lower;
the roofs are broken up, the facade is more broken by thc hatconies, and Unit A2fi does
not ex2st. ,~..
ASPEN BUSINESS CENTER · 303 E · ASPEN, CO 81611 - 970-925-2102 · FAX970-925-2104
P315
The sta/rwel/is also over 30' but perhaps k could stay ifi~ is made Hgh~,
more porous: like a m/ne Tower - i.e. kind of a unique design element. Of course,
it's b. eighr :s not necessary w/tiou~ A26, but architecn~rally k might serve ro bre~ up
~d ~prove a very long noCh facade, even if it were a li~e ~gher, B~co~es t~e
on ~e ~odel wo~d help ~ well.
The roof must be b]ack or yew d~k - nor rested met~. Vent, s~ac~ ~d ~l
~ech~ic~ eq~pment on tie roofm~ be p~ted ~e s~e color.
W{ndows where possible sho~d ~ign over e~h o~er ve~c~y ~llie Bfickh~m0
The guest p~l~g for B~!ding A is no~ a~ B~I~ng A. I~ was very ~po~
to ~e Corm]nee ~g s~d p~ng be cle~Iy s{~ed so ~ ~esm nor p~k ar BuiI~g
210 or on Vendor.
We understand and approve the siding marerlJ. Colors cmn be approved later.
We request no wI0Jte clad windows or w~te f~ias.
The p!~ show no l~ge ~ees on Venmor o~y s~bs. We wo~d t~e
Aspen or couonwoods pt~ted ~ong Venmor (~ it is not possible ~o save ~d ~spI~t
e~srmg ~ees on ~e site.
Frei.y, everyone zelt ~at gene~ly ~d sooner ra~ar t'~s~ later some~g
going to ~ve to be done to cream a bcucr ~cess at ~e sou~ end of~e _~C to Highway
82. 3 ~c:ss po~ coMd be ~d probably shoed be combined ~m one ~ ~e ~e.
But ~at's for a later ~scnssion,
~so, ~e Bo~d felt it would mmke se~e ~ ~e ~e m fold ~e
D) ~to ~e ~C ~d be ~der the. Cove~U for fu~e m~ten~ce, I~cape c~e,
oh....by the way isn't there a better iden15_Ser than
J'McB :jmr ~
P316
MEMORANDUM
TO: MAYOR A2'~) COUNCIL
THRU: ED SADLER. ASSET MANAGER
FROM: STEVE BOSSART, ASSET - PROJECT MANAGER
DATE: 31 JUL03
t:LE: Burlingame D - Design Development - Asset Department Review
Summary:
The selected developer team. ASW Realty Partners, through their architect, Cottle
Greybeal Yaw, has presented design development (DD) level dra~vings and specifications
for review.
We've examined the drawings and specificatinns against the requirements outlined in the
following:
ASPEN AFORDABLE HOUSING BUILDING GUIDELINES trey 11/05/02-
City of Aspen RESIDENTIAL DESIGN STANDARDS
City of AsperfPitkin County Efficient Building Pro,am Checklist
Background:
The developer, under the current "developer model" plan, must provide a project meeting
the above guidelines. ASW Real{y Parmers and their associates presented their
concepmai design cormmitting to those requirements. Council eould make decisions
confident that each finalist in the design competition was on an equal field
Design development is the process whereby the design team can more thoroughly
investigate the concept.
Asset is responsible to CotmciI ro ensure our standards cominue ro be met.
Discussion:
We have performed a review consistent with the DD level. The methodology was to
rewew the standards against the drawings and specifications. Following is list of
questions. Some may be more evident at early Construction Drawing (CD) issues, once
more dimensional information is provided.
P317
The sit~, somewhat by its namr~ does not adhere to standards on pads,
minimizing rszaming walls.
Exterior private open space could not be fully determined
Snowmelt is no~ included - however we have concerns that some roofs will shed
and melt on and in shaded areas - gun,ers are ~cluded contra~ m the standards -
the ~chitect/develop~r has m fact pu~ plug-~ns in many locations for fut~e snow-
melt - we feel this need is guaranteed - this is a major variation ~om the desi~
~d ~een standards
Sola~ orientation of roofs in the approved AS~ plan was brougm ~o the attention
of Council at the competition- roof slopes and orientation do not allow for
effimem or economic solar installation - the developer has suggested yard
concre[e pad installation
Dimensional info~ation is not available to dete~ine compli~ce with unit and
room sizes
Exterior is a cementitious clapboard requiting paint - the st~d~ds call for Iow
maintenance materials, ll]owing for painted wall s~faces if a color clad window
is used - I believe the developer meem the st~d~ds but see co~ents belo~v
The g~age, wi~ doors, is now presented as heated - the mechanical desirer is
placing plumbing systems ~ough the garag~ space. The fire spfi~ler system in
the g~age ~ea is desired as a wel system. These desi~ decisions.
expedient economically today, are a v~afion ~om the desi~ and
stand,ds. Also, some ffanua~ night, a garage door will fail to c~ose and the wa~er
and spfi~ler lines will ~eeze ~d bre~.
~e developer has proposed a $50_000 contract additive change for elevators/lifts
~o comply with Building dep~men~ requirements. These requiremems, accordin~
~o my conversations with our building officials, are no~ additions and ~e readily
apparem in ali Codes ~d guidelines of the City of Aspen. including the Federal
fair Housing Act.
[NOTE: ~le this critique is raising some quesnc ns at this DD review, the developer
uppers ~o be meeting the standards and guidelines in cther ~eas. ~e'lI conduc~ a review
at ~ 50% CD tCons~ction Drawings) Ievel and report to you.]
Financial Implications:
Snowmelt on extefier reefs and the installation o~ gutters with snewmeIt is likely. This
will result ~n ~gh epera~ng, maintenance, and replacement costs. A re~es~ to b~ng th~s
back in m our ~een st~dards would be expensive.
SoIar as a remo~e system wflI cas~ more whE a decrease in eYSc~ency.
Exte~or painting will be reqmred ena five ~ seven ye~ bas~s ~+/-).
2
Addendum to Part 2 Agreement Between City of Aspen and Developer
On Page 1, ~mder "For the following project:"
Add to "Description: 40 one-bedroom affordable housing units" the following:
"pursuant to City of Aspen_~City Council Ordinance No.36, Series of 2003 and the Final PUD
Plans and Subdivision Plan as recorded with the Pitkin County Clerk and Recorder."
P318
7he heated garage ~s proposed to add $61,000 to the construction budget. Energy usage
and costs will be on going Count on periodic shut-down, demolition and reconstntction
costs due to freezing (this could happen once every 20 years, or every 5 years - ir
happened ro me on a prevmus project 2 months after apen/ng - then 5 months of repairs).
Since elevators are required we will have armual maintenance and service costs.
.Recommendation:
Since the selected design has now progressed six months, massive changes are nor
possible if the schedule is to be kept. But since this is the City of Aspen's 5rst projecr
~mder the new green ~fidelines, we should stick to those requirements.
The roofs may be modified ro avoid snowmelt requiremems
Active solar may not be feasible at ail
Use an integral color siding to avoid future painting costs - however we should ail agree
on an acceptable color - the design was selected heavily on its "traditional" appearance -
a traditional stucco colorarion could be satisfactory
The garage situation should be thoroughly reviewed. Heating space that is regularly
opened to the outdoors is contrary ro our green desi~ requ~remems and philosophies.
Building a system with extra mecharfical systems and exposed plumbing and fire
sprinkler is nor wise.
]kIanager's
Comments:
Addendum to Part 2 Agreement Between City of Aspen and Developer
On Page 1, under "For the following project:"
Add to "Description: 40 one-bedroom affordable housing traits" the following:
"pursuam to CiW. of Aspen, City Council Ordinance No.36, Series of 2003 and the Final PUD
Plans and Subdivision Plan as recorded with the Pitk'm County Clerk and Recorder."
P294
Deny-
· If the Developer is required to include something that's stipulated in our building guidelines
and did no,then Staff is inclined to deny;
· if the Developer had been put-on-notice by Staff or Staff believes the Developer should have
reasonably anticipated such an expenditure then Staff is reclined to deny: or
· if the Developer added items ro the design which were meant ro facilitate design and were
totally at the discretion of the Developer then Staff is inclined to deny.
Discussion:
Please see below ASW's proposed additions to the Project and Staffs recommendations:
Addition Assoc. Cosl Staff Recommendation
1. Topsoil Stripping $23,000 Accept - Was not anticipated,
unforeseen cost.
2. Rock Excavation Allo~vance $15,000 Accept - Conditioned on nor To
exceed S15,O0( and if the m6ney is
not needed the funds will be returned
to the City. City previously warned
Developer to factor in xvhat was
encountered at North 40. Developer
should have included in original
proposal:
3. Additional Site Fill $29,650 Accept - But not mutually exclusive
from gI. Developer should have
combined into one item.
4. Colored Concrete Bike Path $31,240 Accept - City Parks' Dept.
reqmrement
5. Add ADA Lifts to Each Bldg. $49,710 Deny- Developer's responsibility.
ASW's reply to th~ City's official
RFP states that, "the proposed design
is in full compliance with ADA
regulations."
6. Green Building Points $38,370 Accept - Currently ar 123 green
building points. Goal = t30 poims..