HomeMy WebLinkAboutagenda.council.regular.20170612
CITY COUNCIL AGENDA
June 12, 2017
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT scheduled for a public hearing. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #92, Series of 2017 - Development Inspection Services Change Order
b) Resolution #93, Series of 2017 -Contract Amendment-The Downtowner
c) Resolution #94, Series of 2017 - Burlingame Pump House Construction Contract
- PNCI Construction, Inc.
d) Resolution #95, Series of 2017 - West Main Street Mobility Plan
e) Board Appointments
f) Minutes - April 24, 2017
VII. Notice of Call-Up
VIII. Public Hearings
a) Ordinance #17, Series 2017- Local Tobacco Sales License and Minimum
Purchase Age Requirements
IX. Adjournment
X. Swear in Mayor and City Council Members
XI. Call to Order
XII. Roll Call
XIII. Citizen Comments & Petitions (Time for any citizen to address Council on issues not scheduled
for a public hearing. Please limit your comments to 3 minutes)
XIV. Councilmembers' and Mayor's Comments
XV. First Reading of Ordinances
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XVI. Action Items
XVII. Executive Session
a) C.R.S. Section 24-6-402(4)(a)(b)(e) - The potential purchase, acquisition, lease,
transfer or sale of any real, personal or other property interest; conference with
attorneys regarding pending litigation, Castle and Maroon Creek diligence cased
and Marie Antoinette Kronberg v. City of Aspen; and conference with attorneys
regarding potential litigation; and determining positions relative to matters that
may be subject to negotiations; developing strategy for negotiations.
XVIII. Adjournment
Next Regular Meeting June 26, 2017
COUNCIL’S ADOPTED GUIDELINES
· Make Decisions Based on 30 Year Vision
· Tone and Tenor Matter
· Remember Where We’re Living and Why We’re Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
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MEMORANDUM
TO: Mayor and City Council
FROM: Tyler Christoff P.E., Deputy Director of Utilities
THRU: Dave Hornbacher, Director of Utilities and Environmental
Initiatives
DATE OF MEMO: May 22th 2016
MEETING DATE: June 12th, 2016
RE: Resolution #92, Series of 2017 - Development Inspection
Services Contract – request for change order approval
REQUEST: Staff requests Council approval of a 1-year extension for the Development
Inspection Services contract. Currently the City is under contract until June 1st 2017 with
Roaring Fork Engineering and Merrick and Company. Extension of this 2016 contract including
hourly rates to June 1st 2018 ensures that the current level of service and continuity of inspection
services keeps pace with this continued influx of projects and supplements in-house expertise.
BACKGROUND: Permit submittals in 2017 indicate increased Right of Way and Utility
development. To maintain, and operate a water and electric system at this quality level it is
imperative to have rigorous design review and field inspection services. These services ensure
that Utility and Right of Way improvements, which the City may take ownership and
responsibility of, are installed with the most up to date Federal, State, and Local design and
installation criteria. The Development Inspection Services contracts allow the City to
supplement staffing on an hourly basis during times of increased fieldwork.
In 2016, the City selected two separate engineering firms through a competitive bid process, both
of which are intimately familiar with the City of Aspen’s Utility and Right of Way standards. To
remove any potential conflict of interest, a specific Consultant Design Engineer will not be
allowed to do design review and inspection of their submitted projects. The Contract in this
manner ensures that no Engineer will certify that their own design project meets all requirements,
rather a third-party reviews and removes the potential for conflict. Services provided under these
contracts will be delivered on a revolving basis with the expectation that both firms have the
opportunity to work with City staff during this construction season.
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FINANCIAL IMPLICATIONS: Staff intends to use Utilities and Engineering funding
dedicated and approved for this Project by City Council.
Total Project Expenditures
Merrick and Company 2017 anticipated work scope $ 60,000.00
Roaring Fork Engineering 2017 anticipated work scope $ 60,000.00
Contingency $ 35,000.00
Total $155,000.00
Funding Budgeted
Utilities 2017 Funding
Inspection Services (acct # 421.322.31520.52199) $ 75,000.00
Engineering 2017 Funding
Right of Way Inspection Services (acct # 001.327.12210.54930) $ 80,000.00
Total $155,000.00
ATTACHMENTS:
A – Resolution
B -- Change order form Merrick and Company and Roaring Fork Engineering
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RESOLUTION #92
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CHANGE ORDER BETWEEN THE CITY OF
ASPEN AND ROARING FORK ENGINEERING AND MERRICK &
COMPANY AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
CHANGE ORDER ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a change order for
Development Field Inspection Services, between the City of Aspen and Roaring
Fork Engineering and Merrick & Company, a true and accurate copy of which is
attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Change
Order for Development Field Inspection Services, between the City of Aspen and
Roaring Fork Engineering and Merrick & Company, a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager to
execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 12th day of June, 2017.
Steven Skadron, Mayor
I, Linda Manning, 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, June 12, 2017.
Linda Manning, City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: John Krueger and Lynn Rumbaugh, Transportation
THRU: Barry Crook, Assistant City Manager
DATE OF MEMO: June 5, 2017
DATE OF MEETING: June 26, 2017
RE: Resolution #93, Series of 2017 - Approval of
Downtowner Contract Amendment
SUMMARY
City Transportation staff is requesting approval of Resolution Number 93 series 2017, authorizing
the City Manager to sign and execute the attached Professional Services Agreement Amendment
between the City of Aspen and the Downtowner for on-demand services through April of 2018 at a
cost of $275,782.00.
PREVIOUS COUNCIL ACTION
· In April 2016, Aspen City Council approved a summer pilot on-demand transit program with the
Downtowner as the selected vendor beginning in June of 2016 ending in September 2016.
· In August 2016, Council approved a 1-year contract from September 2016 through September,
2017 for the Downtowner.
· At its May 30, 2017 work session, Council supported the extension of the existing 1-year
Downtowner contract from September 2017 through April of 2018, but was split on the
expansion of service area boundaries.
BACKGROUND
The Downtowner service is the result of Council’s desire to pilot an electric-powered, app-based on-
demand service as a means of reducing traffic and parking congestion in downtown Aspen. At the
January 2016 work session Council directed staff to evaluate the feasibility, cost and effectiveness of
a small on-demand electric cart service in and around the core area to compliment and supplement
limited fixed route transit service. A Request for Proposals was issued in March 2016 with the
Downtowner, the only respondent, selected to operate the service for three summer months at a cost
of $89,250.00. The contract with the Downtowner was then extended through September 15, 2017 to
allow for a review of usage throughout a full complement of seasons. The cost of this service
extension was $286,080.00. Service has been well-received by users, but has been a source of
concern for the local taxi industry.
DISCUSSION
Staff has included the Downtowner as part of the transit service and mobility options to be fully
reviewed via the Short-Range Transit Plan process that is now underway. Specifically, the transit
plan will review options for the Downtowner, or another similar provider or providers, to expand on-
demand services to under-served neighborhoods, replace low performing transit routes and/or back
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up overcrowded routes. The consultant will also assist with advice on best practices for including
existing taxi and shuttle providers in these new mobility efforts. At Council’s direction, staff is
requesting that this important review be an early action item for the SRTP consultant team.
Also at Council’s request, the Downtowner has agreed to include a survey question with each ride
request to better understanding any mode shift created by the provision of the service.
Council should provide direction on the issue of extending the service area to the Music Tent – that
service area now ends some 1.5 blocks from that destination.
FINANCIAL IMPLICATIONS
The cost of extending the Downtowner service through April, 2018 is $275,782.00. The 2017
Transportation Fund can cover this expense with a supplemental request. The 2018 portion of this
expense will be included as part of the upcoming budget process.
ENVIRONMENTAL IMPLICATIONS
Planning for and implementing improved transit and mobility options aligns with the City’s goal of
keeping traffic at 1993 levels while reducing air pollution as well as the current Top Ten goals.
RECOMMENDATION
Staff recommends that Council approve Resolution 93 series 2017, allowing the City Manager to
sign and execute the attached professional services agreement amendment.
ALTERNATIVES
If Council wishes to extend the service area, you should approve “Alternative Resolution #93”
(Alternative Attachment A) and the “Alternative Professional Services Agreement Amendment”
(Alternative Attachment B) that includes the following language:
“All trips begin and end within an area bounded by 8th Street on the west, the Cooper
Avenue Bridge on the east, the Roaring Fork River and Gillespie Street on the north,
and Aspen Mountain on the south.”
ATTACHMENTS
Attachment A: Resolution #93 series 2017
Attachment B: Professional Services Agreement Amendment
Alternative Attachment A: Resolution #93 series 2017
Alternative Attachment B: Professional Services Agreement Amendment
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ATTACHMENT A
RESOLUTION #93
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT AMENDMENT BETWEEN THE
CITY OF ASPEN AND THE DOWNTOWNER AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT AMENDMENT ON BEHALF
OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract
amendment for the extension of Downtowner services through April of 2018, a
true and accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
amendment between the City of Aspen and the Downtowner, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 12th day of June, 2017.
Steven Skadron, Mayor
I, Linda Manning, 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, June 12, 2017.
Linda Manning, City Clerk
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Agreement Professional Services Page 0
ATTACHMENT B
Amendment to the City of Aspen’s
PROFESSIONAL SERVICES AGREEMENT
For City of Aspen Project No.: 2016-035.
Original Agreement Date:11th day of April, in the year 2016.
BETWEEN the City:
New Contract Amount:
The City of Aspen
c/o Transportation
130 South Galena Street
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Professional:
Aspen Downtowner Group, LLC
BDA Downtowner
210 NE 4th Ave, Delray Beach, FL 33483
Phone: 561-386-4073
Amendment to the Original Agreement Shall be as Follows:
Original City Council Approval Date:
Date: Augustl 22, 2016
Resolution No.:114, Series 2016
The Aspen Downtowner Group shall continue to provide on-demand electric car service in the
Aspen downtown core through April 30, 2018. Compensation for the extended service is
$275,782.00.
The Aspen Downtowner Group must include the City’s PO number on all invoices and submit
to AP@cityofaspen.com.
The original terms and conditions apply.
Total: $275,782.00
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Agreement Professional Services Page 1
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Amendment of the Professional Services Agreement.
CITY OF ASPEN, COLORADO:PROFESSIONAL:
______________________________________________________________ [Signature] [Signature]
By: _____________________________By: _____________________________ [Name] [Name]
Title: ____________________________Title: ____________________________
Date: ___________________Date: ___________________
Approved as to form:
_______________________________
City Attorney’s Office
Stephen Murray
CEO, Downtowner
6/8/17
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ALTERNATIVE RESOLUTION #93
AND
ALTERNATIVE PROFESSIONAL SERVICES
AGREEMENT AMENDMENT
If Council decides to extend the Downtowner service area to the Music Tent
area, then this alternative resolution and professional services agreement
amendment should be approved.
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ALTERNATIVE
ATTACHMENT A
RESOLUTION #93
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT AMENDMENT BETWEEN THE
CITY OF ASPEN AND THE DOWNTOWNER AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT AMENDMENT ON BEHALF
OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract
amendment for the extension of Downtowner services through April of 2018 and
an extension of their service area, a true and accurate copy of which is attached
hereto as Alternative Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
amendment between the City of Aspen and the Downtowner, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 12th day of June, 2017.
Steven Skadron, Mayor
I, Linda Manning, 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, June 12, 2017.
Linda Manning, City Clerk
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Agreement Professional Services Page 0
ALTERNATIVE ATTACHMENT B
Amendment to the City of Aspen’s
PROFESSIONAL SERVICES AGREEMENT
For City of Aspen Project No.: 2016-035.
Original Agreement Date:11th day of April, in the year 2016.
BETWEEN the City:
New Contract Amount:
The City of Aspen
c/o Transportation
130 South Galena Street
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Professional:
Aspen Downtowner Group, LLC
BDA Downtowner
210 NE 4th Ave, Delray Beach, FL 33483
Phone: 561-386-4073
Amendment to the Original Agreement Shall be as Follows:
Original City Council Approval Date:
Date: August 22, 2016
Resolution No.:114, Series 2016
The Aspen Downtowner Group shall continue to provide on-demand electric car service in the
Aspen downtown core through April 30, 2018. Compensation for the extended service is
$275,782.00.
All trips begin and end within an area bounded by 8th Street on the west, the Cooper Avenue
Bridge on the east, the Roaring Fork River and Gillespie Street on the north, and Aspen
Mountain on the south.
The Aspen Downtowner Group must include the City’s PO number on all invoices and submit
to AP@cityofaspen.com.
Total: $275,782.00
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Agreement Professional Services Page 1
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Amendment of the Professional Services Agreement.
CITY OF ASPEN, COLORADO:PROFESSIONAL:
______________________________________________________________ [Signature] [Signature]
By: _____________________________By: _____________________________ [Name] [Name]
Title: ____________________________Title: ____________________________
Date: ___________________Date: ___________________
Approved as to form:
_______________________________
City Attorney’s Office
Stephen Murray
CEO, Downtowner
6/8/17
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MEMORANDUM
TO: Mayor and City Council
FROM: Tim Thompson, Project Manager
Kevin Dunnett, Planning and Construction Manager
THRU: Jack Wheeler, Capital Asset Manager
Tom Rubel, Director of Parks and Open Space
Jeff Woods, Manager Parks and Recreation
DATE OF MEMO: June 5th, 2017
MEETING DATE: June 12th, 2017
RE: Burlingame Pump House Project – Resolution # 94, Series of
2017: Approval of the Burlingame Pump House construction
contract with PNCI Construction, Inc.
REQUEST OF COUNCIL: Staff recommends approval of the contract with PNCI
Construction, Inc. to construct a Pump House structure to house the irrigation pump and filter
system for the Burlingame Phase II development and city Parks #1 and #2. The construction
contract amount is $269,411.
PREVIOUS COUNCIL ACTION: Approved Resolution #106 on August 22, 2016 for sole
source contract with vendor Grand Junction Pipe for the purchase of the pumps, filters, and
miscellaneous equipment to be housed in the Pump House structure. The City Council approved
budget authority for this purchase within the 2016 Capital Project budget cycle.
BACKGROUND: Burlingame Phase II is currently irrigated entirely by the cities potable water
system. Upon completion of the new raw water transfer pipe from Harmony Park to the Park #1
storage pond, (currently under construction) raw water can now be distributed via the new pump
system for irrigation for all of Burlingame Phase II. Potable water will no longer be necessary for
irrigation needs. The construction of the Pump House structure is the next step in this process.
DISCUSSION: Last summer contractor bids were received by the Parks Department for the
construction of the Pump House structure. The two contractor bids received were exorbitantly
high and unrealistic. The Parks Department re-assessed the structure design and valued
engineered components of the building without compromising function and aesthetics. An
elevated concrete walkway to enable pedestrian access to the roof overlook was revised to a
crusher fines trail w/ a rock retaining wall, original exterior wood siding was replaced with a
colored concrete board form finish and a green roof was replaced with multiple custom planters
to achieve similar effect.
The Parks and Asset management departments through their continued collaborative efforts at
Burlingame discussed the economic benefit of offering the bidding of the Pump House structure
construction to PNCI, as they are the selected contractor for the Burlingame single family lots
immediately adjacent to the Pump House site. PNCI is currently mobilized and will be working
on the housing components through January 2018. This contract for construction services as a
sole-source meets the criteria identified in section 4.12.050 of the City’s Purchasing Code. Most
importantly, PNCI is available to start the Pump House construction immediately after permit
approval this August with completion in November 2017. Our area continues to experience
record level construction costs as qualified contractors continue to be in high demand. Thus,
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finding qualified contractors to reasonably bid on smaller municipal projects is difficult. Due to
the abovementioned issues the Parks and the Asset Management Staff feel that the sole source
bid received from PNCI, Inc. is reasonable and justified.
ENVIRONMENTAL / COMMUNITY IMPACTS: The Pump House structure will contain
the pump systems and mechanical infrastructure necessary to covert the Burlingame Phase II
irrigation system from potable water to a raw/ ditch water system. Conserving potable, treated
water creates a more sustainable project and sets a positive environmental precedent. Raw water,
along with non-point source storm water, which will be stored within the newly created wetland
ponds will enhance wildlife habitat, create a serene and enjoyable setting for the new Parks and
be a positive attribute to the public and residents of Burlingame. This methodology aligns this
project development with the multiple stated environmental goals of the overall community and
City Council’s goals related to environmental stewardship.
FINANCIAL / BUDGET IMPACTS: This contract for construction falls within the approved
CoA Parks budget authority for building the Burlingame Pump House.
RECOMMENDED ACTION: Staff recommends approval of Resolution #94, Series of 2017
for PNCI Construction, Inc. to build the Burlingame Pump House.
CITY MANAGER COMMENTS:
ATTACHMENTS:
I. Exhibit I – PNCI Contract for Construction dated 06/12/17 PLEASE SIGN ON PAGE 3
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RESOLUTION 94
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND PNCI
CONSTRUCTION, INC., AUTHORIZING THE CITY MANAGER TO APPROVE ON
BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract - between the City of
Aspen and PNCI Construction Inc., a true and accurate copy of which is attached hereto as
“Exhibits “I”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the contract between the City
of Aspen and PNCI CONSTRUCTION, INC. - a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Manager to execute said agreement on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 12th day of June, 2017.
Steven Skadron, Mayor
I, Linda Manning, 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 on the 12th day of June, 2017.
___________________________________
Linda Manning, City Clerk
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___________________________________________________________________________________________________________________
CC1-971.doc Page 1 **CC1
CONTRACT FOR CONSTRUCTION
THIS AGREEMENT, made and entered into on June 12, 2017, by and between the CITY OF
ASPEN, Colorado, hereinafter called the “City”, and PNCI CONSTRUCTION INC., hereinafter
called the “Contractor”.
WHEREAS, the City has caused to be prepared, in accordance with the law,
specifications and other Contract Documents for the work herein described, and has approved
and adopted said documents, and has caused to be published, in the manner and for the time
required by law, an advertisement, for the project: 2017-081 Burlingame Pumphouse, and,
WHEREAS, the Contractor, in response to such advertisement, or in response to direct
invitation, has submitted to the City, in the manner and at the time specified, a sealed Bid in
accordance with the terms of said Invitation for Bids; and,
WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined,
and canvassed the Bids submitted in response to the published Invitation for Bids therefore,
and as a result of such canvass has determined and declared the Contractor to be the lowest
responsible and responsive bidder for the said Work and has duly awarded to the Contractor a
Contract for Construction therefore, for the sum or sums set forth herein;
NOW, THEREFORE, in consideration of the payments and Contract for Construction
herein mentioned:
1. The Contractor shall commence and complete the construction of the Work as fully
described in the Contract Documents.
2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and
other services necessary for the construction and completion of the Work described
herein.
3. The Contractor shall commence the work required by the Contract Documents within
seven (7) consecutive calendar days after the date of “Notice to Proceed” and will
complete the same by the date and time indicated in the Special Conditions unless the
time is extended in accordance with appropriate provisions in the Contract Documents.
4. The Contractor agrees to perform all of the Work described in the Contract Documents
and comply with the terms therein for a sum not to exceed TWO HUNDRED SIXTY NINE
THOUSAND FOUR HUNDRED FORTY ONE ($269,441.00) DOLLARS or as shown on
the BID proposal.
5. The term “Contract Documents” means and includes the documents listed in the City of
Aspen General Conditions to Contracts for Construction (version GC97-2) and in the
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___________________________________________________________________________________________________________________
CC1-971.doc Page 2 **CC1
Special Conditions. The Contract Documents are included herein by this reference and
made a part hereof as if fully set forth here.
6. The City shall pay to the Contractor in the manner and at such time as set forth in the
General Conditions, unless modified by the Special Conditions, such amounts as
required by the Documents.
7. This Contract for Construction shall be binding upon all parties hereto and their
respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein or in the Contract Documents, this Contract for
Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the
Municipal Code, including the approval requirements of Section 4-08-040. This
agreement shall not be binding upon the City unless duly executed by the City Manager
or the Mayor of the City of Aspen (or a duly authorized official in his/her absence)
following a resolution of the Council of the City of Aspen authorizing the Mayor or City
Manager (or a duly authorized official in his/her absence) to execute the same.
8. This agreement and all of the covenants hereof shall inure to the benefit of and be
binding upon the City and the Contractor respectively and their agents, representatives,
employees. Successors, assigns, and legal representatives. Neither the City nor the
Contractor shall have the right to assign, transfer or sublet his or her interest or
obligations hereunder without the written consent of the other party.
9. 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 Contractor or the City may
assign this Contract for Construction 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 Contractor because of any breach hereof or because of any of the terms,
covenants, agreements or conditions herein contained.
10. 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.
11. The parties agree that this Contract for Construction was made in accordance with the
laws of the State of Colorado and shall be so construed. Venue is agreed to be kept
exclusively in the courts of Pitkin County, Colorado.
12. In the event that legal action is necessary to enforce any of the provisions of this
Contract for Construction, the prevailing party shall be entitled to its costs and
reasonable attorney’s fees.
13. This Contract for Construction was reviewed and accepted 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 Contract for Construction.
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ATTACHMENTS
A – GMP/Estimate
B – Plans, Specifications and Clarifications
C – Preliminary Construction Schedule
D – General and Special Conditions of the Contract
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Project No.: P-1954
Address:
Project Duration:
CODE Description Quan. Unit Labor Material Vendor / Sub Total
01-105 Builders Risk 1,250.00 1,250.00$
01-120 Permit Fees by COA -$
01-311 Project Manager 8,800.00 8,800.00$
01-313 Field Engineer 7,200.00 7,200.00$
01-315 Project Engineer 4,500.00 4,500.00$
01-316 Subsistence & Housing 1,200.00 1,200.00$
01-317 Vehicle Expense 750.00 750.00$
01-451 Q.C. & Special Inspections by COA -$
01-755 Trash Dumpsters & Fees 850.00 850.00$
01-771 Consumables 1,000.00 1,000.00$
Contingency by owner -$
-$
Joint Sealants 506 sf 1,012.00 1,012.00$
HM Doors, Frames and Hardware 1 ls 350.00 1,385.00 1,735.00$
Roof Hatch 1 ls 450.00 2,250.00 2,700.00$
Basketball Hoop 1 ls 250.00 250.00$
Install City Provided Sound Walls TBD -$
-$
Soil Nailing 1 ls 36,500.00 36,500.00$
Earthwork by owner -$
Electrical Trenching 420 lf 6,300.00 6,300.00$
Concrete 1 ls 34,821.00 34,821.00$
Structural Steel, Handrails, Misc. 1 ls 29,226.00 29,226.00$
Insulation 1 ls 19,664.00 19,664.00$
Waterproofing 1 ls 1,250.00 1,250.00$
Scupper & Downspout 1 ls 875.00 875.00$
Overhead Door 1 ls 1,824.00 1,824.00$
Painting 1 ls 3,350.00 3,350.00$
Plumbing 1 ls 4,136.00 4,136.00$
HVAC 1 ls 10,533.00 10,533.00$
Electrical 1 ls 63,532.00 63,532.00$
Basketball Court & Striping by others -$
-$
-$
-$
Labor Materials Vendor / Sub Total
Subtotals $21,300.00 $3,885.00 $218,073.00 $243,258.00
$243,258.00
1.45%$3,527.24
6.00%$14,807.11
3.00%$7,847.77
$269,441.00
Burlingame Pump House
283 Forge Road
Direct Cost of Work
6/1/2017
Liability Insurance
Subcontractors
Vendors
TLS
10 Weeks
General Conditions
Self Performed Work
GMP Estimate
Aspen, CO 81611
Estimate Total:
Bond
Contractors Fee
Date:
Estimator:
Page 1 of 1
ATTACHMENT "A"
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PLANS AND SPECIFICATIONS
DOCUMENTS PREPARED BY
Charles Cunniffe Architects
610 East Hyman Ave.
Aspen, CO 81611
Phone: 970-925-5590
PLANS
Dated 5-5-2017
CVR, A0.1, Survey, !4.0a, L-1, L-2, A1.1, A2.1, A3.1, A3.2, A3.3, A4.1, A9.1, A10.1, A10.2, S001, S101,
S201, M001, M101, E001, E002, E101
SPECIFICATIONS
Dated 5-5-2017
Division(s) 01010, 01330, 01400, 01420, 01740
02300
05700
07210, 07920
08110, 08310, 08361, 08710
16500
Appendix A (cut sheets)
CLARIFICATIONS
Landscaping and basketball court hoop and striping by others.
All excavation provided by others. Coordination as per mutually agreed schedule
Material and installation of Wet Well and associate piping by others.
Pump(s) associated piping and controls by others.
Material and installation of Irrigation main/distribution lines\pipes by others
Sleeves for all penetrations through concrete walls and floor to be provided by others and
installed by PNCI. Seals are to be provided and installed by others.
All line voltage and controls from disconnects to pumps to be provided and installed by others.
3” drain from building to be stubbed 5’ outside building. Beyond 5’ is by others.
Concrete walls are to be considered structural and not “architectural concrete”.
GMP includes pricing/scope for Pumphouse three phase power from secondary of CoA provided
and install transformer located at 221 Forge Road. Conductors to be installed in existing conduit
to Pumphouse location.
GMP is based on soil stabilization from Rock Solid and utilizes Soil Nails for both Concrete Wall
and Wet Well
Completion date of 12-1-2017 is based and/or contingent upon building permit no later than 8-1-
2017.
Performance & Payment Bonds to be provide upon execution of this Agreement in the full
amount of the Agreement.
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ID Task Name Duration Start Finish1Wall Soil Stabilization10 daysTue 8/1/17Mon 8/14/172Wet Well Stabilization10 daysTue 8/15/17Mon 8/28/173Wet Well & Pipe Installation (City)10 daysTue 8/29/17Mon 9/11/174Excavation Foundations2 daysTue 9/12/17Wed 9/13/175Form & Pour Foundation/Slab5 daysThu 9/14/17Wed 9/20/176Form & Pour Walls15 daysThu 9/21/17Wed 10/11/177Install Roof Structure5 daysThu 10/12/17Wed 10/18/178Roofing10 daysThu 10/19/17Wed 11/1/179Install Doors & Windows3 daysThu 11/2/17Mon 11/6/1710Install MEP5 daysTue 11/7/17Mon 11/13/1711Paint2 daysTue 11/14/17Wed 11/15/1712Install Pump & Piping (City)10 daysThu 11/16/17Wed 11/29/1713Commission Systems2 daysThu 11/30/17Fri 12/1/17JunJulAugSepOctNovDecCITY OF ASPENBURLINGAME PUMPHOUSEPreliminary Construction SchedulePage 1ATTACHMENT "C"P41VI.c
GC1-971.doc - Page 1
City of Aspen - General Conditions for Construction Contracts
City of Aspen
General Conditions
For
Construction Contracts
(Version GC-97-2)
ATTACHMENT "D"P42
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City of Aspen - General Conditions for Construction Contracts
CITY OF ASPEN, COLORADO
GENERAL CONDITIONS
FOR
CONSTRUCTION CONTRACTS
(Version GC-97-2)
TABLE OF CONTENTS
Article 1 - Abbreviations, Definitions, and Provisions of General Applicability.
1.1. Abbreviations .................................................................................................................................................................................................. 5
1.2. Definitions ....................................................................................................................................................................................................... 5
Article 2 - Preliminary Matters.
2.1. Delivery of Bonds ............................................................................................................................................................................................ 8
2.2. Copies of Documents ...................................................................................................................................................................................... 8
2.3. Commencement of Contract Time, Notice to Proceed .................................................................................................................................. 8
2.4. Starting the Project .......................................................................................................................................................................................... 9
2.5. Before Starting the Project .............................................................................................................................................................................. 9
2.6. Pre-construction Conference ........................................................................................................................................................................ 9
2.8 Project Progress Meetings ................................................................................................................................................................................ 9
Article 3 - Contract Documents, Intent, Amending, Ownership, Escrow Bid Documents
3.1. Intent ............................................................................................................................................................................................................... 10
3.4. Amending and Supplementing Contract Documents .................................................................................................................................... 10
3.6. Reuse of Documents ....................................................................................................................................................................................... 11
3.7. Precedence of Documents
............................................................................................................................................................................ 11
Article 4 - Availability of Lands, Physical Conditions, Reference Points.
4.1. Availability of Lands ...................................................................................................................................................................................... 11
4.2. Physical Conditions .......................................................................................................................................................................................... 11
4.2.1. Exploration and Reports ................................................................................................................................................................................... 12
4.2.2. Existing Structures .......................................................................................................................................................................................... 12
4.2.3. Report of Differing Conditions ...................................................................................................................................................................... 12
4.2.4. Engineer’s Review ........................................................................................................................................................................................ 12
4.2.5. Possible Document Change ........................................................................................................................................................................... 12
4.2.6. Possible Price and Time Changes .................................................................................................................................................................... 12
4.3. Physical Conditions - Underground Facilities ............................................................................................................................................... 12
4.3.1. Shown or Indicated ......................................................................................................................................................................................... 12
4.3.2. Not Shown or Indicated ................................................................................................................................................................................... 12
4.4. Land Surveys & Reference Points ................................................................................................................................................................. 12
4.5. Protection of Existing Vegetation
................................................................................................................................................................. 13
4.6. Hazardous Materials ...................................................................................................................................................................................... 14
4.7. Contractor's Representations .......................................................................................................................................................................... 14
Article 5 - Bonds, Indemnification, Liability, and Insurance
5.1. Performance, Payment, Maintenance and Other Bonds
............................................................................................................................... 15
5.2. Indemnification ............................................................................................................................................................................................... 15
5.3. Contractor's Insurance .................................................................................................................................................................................... 15
5.4. City's Liability Insurance ................................................................................................................................................................................ 17
Article 6 - Contractor's Responsibilities.
6.1. General Responsibilities ................................................................................................................................................................................. 17
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6.2. Supervision and Superintendence .................................................................................................................................................................. 17
6.3. Labor, Materials, and Equipment .................................................................................................................................................................. 18
6.4.-6.7 Reserved
…………………………………………………………………..........................................................................……………… 18
6.8 Sub-contractors, Suppliers and Others ...........................................................................................................................................................
19
6.9 Sub-contracting …………………………………………………...........................................................................…………………….. 20
6.10 Patent Fees, Royalties, Permits …………………………...............................................................................…………………………… 20
6.11 Permits ………………………………………………………...........................................................................………………………… 20
6.12 Laws and Regulations …………………………………………………...........................................................................………………. 20
6.13 Taxes ……………………………………………………………............................................................................……………………… 21
6.14 Use of Premises ……………………………………………............................................................................…………………………….21
6.15 Record Documents ………………………………………………............................................................................…………………… 21
6.16 Safety and Protection ………………………………………...........................................................................………………………….. 21
6.17 Emergencies ……………………………………………............................................................................……………………………… 22
6.18 Shop Drawings and Samples …………………………………...........................................................................………………………. 22
6.19 Claim Release, Mechanics’ Lien ……………………............................................................................…………………………………. 23
6.20 Continuing the Work ……………………………………...........................................................................……………………………… 24
6.21 Contractor’s Facilities …………………………………............................................................................……………………………….. 24
Article 7 - Other Work.
7.1. Related Work at Site ...................................................................................................................................................................................... 24
7.2. Coordination ................................................................................................................................................................................................. 24
Article 8 - City's Responsibilities.
8.0. ……...….....……………………………………..................................................................……………………… 25
Article 9 - Engineer’s Status During Construction.
9.1. City's Representative .................................................................................................................................................................................... 25
9.2. Visits to Site ................................................................................................................................................................................................... 25
9.3. Project Representation .................................................................................................................................................................................. 25
9.4. Clarification and Interpretation ..................................................................................................................................................................... 26
9.5. Authorized Variations in Work ..................................................................................................................................................................... 26
9.6. Rejecting of Defective Work ........................................................................................................................................................................ 26
9.7 Shop Drawings, Change Orders and Payments .............................................................................................................................................. 26
9.8 Decisions on Disputes ……………………………………………………...........................................................................……………… 26
9.9 Arbitration ……………………………………………………………...........................................................................………………… 27
9.10 Limitations on The Engineer’s Responsibilities. ………..........................................................................………………………………… 27
Article 10 - Changes in the Work.
10.1. City Initiated Changes ......................................................................................................................................................................................... 27
10.2. Work Directive Change ...................................................................................................................................................................................... 27
10.3. Change Order ....................................................................................................................................................................................................... 28
10.4. Contractor Change Request ................................................................................................................................................................................ 28
10.5. Down Time
10.6. Submittal Requirements and Waiver of Claims ................................................................................................................................................ 29
Article 11 - Changes of Contract Price.
11.1. Contract Price Adjustments ................................................................................................................................................................................. 29
11.2. Contract Time Adjustments ................................................................................................................................................................................. 29
11.3. Force Account Work ............................................................................................................................................................................................ 30
11.4. Contract Sum Determination ............................................................................................................................................................................... 30
11.5. Cost and Pricing Data ............................................................................................................................................................................................ 32
11.6. Variation in Quantity of Unit Priced Items ........................................................................................................................................................ 32
Article 12 - Reserved.
Article 13 - Warranty and Guarantee (Maintenance Bond); Tests and Inspection; Correction, Removal
or Acceptance of Defective Work.
13.1. Warranty ............................................................................................................................................................................................................. 33
13.2. Access to Work ................................................................................................................................................................................................... 34
13.3. Tests and Inspections ........................................................................................................................................................................................... 34
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13.4. Uncovering Work ................................................................................................................................................................................................. 35
13.5. City May Stop the Work ...................................................................................................................................................................................... 35
13.6. Correction or Removal of Defective Work ......................................................................................................................................................... 35
13.7. Correction Period ................................................................................................................................................................................................. 35
13.8. Acceptance of Defective Work .............................................................................................................................................................................. 35
13.9. City May Correct Defective Work ...................................................................................................................................................................... 36
13.10. Unauthorized Work ............................................................................................................................................................................................ 36
Article 14 - Payments to Contractor and Completion.
14.1. Determination of Work Value ............................................................................................................................................................................ 36
14.2. Application for Progress Payment ....................................................................................................................................................................... 36
14.3. Contractor's Warranty of Title ............................................................................................................................................................................ 37
14.4. Engineer’s Review of Progress Payments .......................................................................................................................................................... 37
14.5. Substantial Completion ...................................................................................................................................................................................... 38
14.6. Partial Utilization ................................................................................................................................................................................................. 38
14.7. Final Inspection ................................................................................................................................................................................................... 39
14.8. Final Progress Payment ........................................................................................................................................................................................ 39
14.9. Settlement Date, Notice to Subcontractors, Acceptance and Final Payment ....................................................................................................... 39
14.10. Contractor's Continuing Obligation ................................................................................................................................................................... 39
14.11. Time for Completion and Liquidated Damages ................................................................................................................................................... 40
Article 15 - Suspension of Work and Termination.
15.1. City May Suspend Work ................................................................................................................................................................................... 41
15.2. City May Terminate ............................................................................................................................................................................................ 41
15.5. Contractor May Stop Work or Terminate .......................................................................................................................................................... 42
Article 16 - Miscellaneous.
16.1. Nondiscrimination ............................................................................................................................................................................................. 42
16.2. Giving Notice ..................................................................................................................................................................................................... 43
16.3. Computation of Time .......................................................................................................................................................................................... 43
16.4. General ................................................................................................................................................................................................................ 43
16.5. Independent Contractor Status .............................................................................................................................................................................. 43
16.6. Prohibited Interest ............................................................................................................................................................................................. 43
16.7. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest ......................................................................................... 44
16.8. Payments Subject to Annual Appropriations .................................................................................................................................................... 44
16.9. Contractor Acceptance ...................................................................................................................................................................................... 44
16.10. Successors and Assigns ...................................................................................................................................................................................... 45
16.11. Third Parties ...................................................................................................................................................................................................... 45
16.12. Waiver ................................................................................................................................................................................................................ 45
16.13. Agreement Made in Colorado ............................................................................................................................................................................... 45
16.14. Attorneys' Fees .................................................................................................................................................................................................... 45
16.15. Waiver of Presumption ..................................................................................................................................................................................... 45
16.16. Severability Clause ............................................................................................................................................................................................. 45
16.17. Audit and Records ............................................................................................................................................................................................. 45
16.18. Audit .................................................................................................................................................................................................................... 46
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City of Aspen - General Conditions for Construction Contracts
INTRODUCTION
The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all,
unless certain services or equipment are specifically excluded. These General Conditions have been prepared to be
incorporated by reference into the Contract entered into between the City and the Contractor. In the event of conflict or
inconsistency among the Contract Documents, the order of precedence set forth in the Contract for Construction shall
govern the interpretation of the Contract between the City of Aspen and the Contractor. Words and abbreviations which
have well-known technical or trade meanings are used in the Contract Documents in accordance with their recognized
meanings, provided however that those terms required to be defined in the Proposal by the Contractor shall have the
meaning given to them in the Proposal to the extent that they are not in conflict with any other part or term of the
Contract Documents.
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
FHWA Federal Highway Administration
FTA Federal Transit Administration
HVAC Heating, Ventilation, and Air Conditioning
NBS National Bureau of Standards
NEC National Electric 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 Underwriter's Laboratories, Inc.
UMTA United States Department of Transportation, Urban Mass Transportation Authority
UD&FCD Urban Drainage and Flood Control District
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City of Aspen - General Conditions for Construction Contracts
MUTCD Manual on Uniform Traffic Control Devices
1.2. Wherever used in these General Conditions 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 Bids which clarify, correct or change the
bidding documents, Contract Documents, drawings, details or specifications.
Bid - The offer or proposal of the bidder submitted on the prescribed form(s) setting forth the prices for the Work to be
performed.
Bidder - Any qualified responsible and responsive firm or corporation submitting a Bid for the Work.
Bid Package - All information and standard Contract Documents prepared by the City to assist potential bidders to
prepare their bids.
Bonds - Bid, performance, payment, maintenance bonds and other acceptable instruments of financial security,
furnished by the Contractor and his/her surety in accordance with the Contract Documents.
Change Order - A written order to the Contractor authorizing an addition, deletion or revision in the Work within the
general scope of the Contract Documents, or authorizing an adjustment in the Contract Price or Contract Time, issued
on or after the Effective Date of the Contract for Construction.
City or Owner - The City of Aspen in Pitkin County, Colorado.
Contract - All contract documents attached to the Contract for Construction and made a part thereof as provided herein.
Contract Documents - The Contract including Invitation to Bid, Instructions to Bidders, Bid Proposal, Addenda,
General Conditions, Special Conditions, Contract for Construction, Bid Bond, Notice of Award, Payment, Performance,
and Maintenance Bonds, Drawings identified in the Contract Documents or attached as part of the Bid, and
Specifications identified in the invitation to Bid or attached as part of the Bid, Affidavit of Compliance form, Liquidated
Damages form, Contractor’s License form, Daily Construction Log form, Progress Pay Estimate form, and Insurance
Certificates.
Contract for Construction - The written agreement between City and Contractor covering the Work to be performed.
Contractor - The qualified responsible and responsive firm or corporation with whom the City has entered into the
Contract for Construction.
Contract Price - The moneys payable by the City to the Contractor under the Contract Documents as stated in the
Contract for Construction (subject to the provisions of paragraph 11.4.), 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 Engineering Department, used by the City Project Inspector
to record the Contractor’s daily work quantities and project events. Daily construction log is the only verified
justification for payment to the Contractor.
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 Engineer’s recommendation of
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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).
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 Engineer.
Effective Date of the Contract for Construction - The date indicated in the Agreement on which it becomes effective,
but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two
parties to sign and deliver.
Engineer - The person, firm, corporation or the City Engineer, named as such in the Contract Documents.
Field Order - A written order affecting a change in the Work not involving an adjustment in the Contract Time, issued
by the Engineer to the Contractor 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 apparent successful bidder stating that upon compliance by the
apparent successful bidder with the conditions precedent enumerated therein, within the time specified, the City will sign
and deliver the Contract.
Notice to Proceed - A written notice given by the City to the Contractor fixing the date on which the Contract Time will
commence to run and on which Contractor shall start to perform Contractor's obligations under the Contract Documents.
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 - The form furnished by the City Engineering Department, which is to be used to record,
approve, and process payment when the Contractor 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.
Project Inspector - The authorized Civil Engineer or Civil Engineering Technician, designated by the City Engineer to
observe construction, materials placement and testing and to prepare the Daily Construction Logs and field reports.
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 Project Inspector.
Shop Drawings - All drawings, diagrams, illustrations, brochures, schedules and other data which are specifically
prepared by or for the Contractor 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 Contractor 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.
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Subcontractor - A firm or corporation having a direct contract with the Contractor 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 Engineer as evidenced by the Engineer’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.
Special Conditions or Special Provisions - The part of the Contract Documents which amends or supplements these
General Conditions.
Supplier - A manufacturer, fabricator, supplier, distributor, material-man 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 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 prices.
Work - 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, furnishing 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 Contractor on or after the Effective Date of the Contract for Construction 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 Contractor delivers the executed Contracts to the Purchasing Department, the Contractor shall also deliver such
Bonds as the Contractor is be required to furnish in accordance with paragraph 5.1.
2.2 Copies of Documents:
The City shall furnish to the Contractor 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, either the City Manager or the Mayor of the City of Aspen shall approve
the Contract Documents and shall execute the same. Notwithstanding any representations to the contrary made by City’s
employees, either directly, indirectly, or by implication, no Contract shall be 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 either (a) the City Manager has executed the
Contract, or (b) The City Council has authorized the execution of the Contract, and the Contractor has executed the
Contract 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 Contractor shall start to perform the Work on the date when the Contract Time commences to run, but no Work
shall be done at the site prior to the date on which the Contract Time commences to run and prior to a mandatory pre-
construction conference conducted by the City.
2.5 Before Starting the Project:
Before undertaking each part of the Work, the Contractor shall carefully study and compare the Contract Documents and
check and verify pertinent figures shown thereon and all applicable field measurements. The Contractor shall promptly
report in writing to the Engineer any conflict, error or discrepancy which Contractor may discover and shall obtain a
written interpretation or clarification from the Engineer before proceeding with any Work affected thereby.
2.5.1. Within Three Days after the Effective Date of the Contract (unless otherwise specified in the Special
Conditions or General Requirements), the Contractor shall submit to the Project Manager 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 Contractor will take to ensure the highest quality in the
constructed Bid items.
2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action
process.
2.5.2. Before any Work at the site is started, the Contractor shall deliver to the City and Purchasing Officer, copies of
certificates (and other evidence of insurance requested by the City) which the Contractor is required to purchase and
maintain.
2.6 Pre-construction Conference:
Within Seven (7) Consecutive Calendar Days after the Effective Date of the Bid Award, and before the Contractor starts
the Work at the site, he/she and all of his/her sub-contractors and suppliers shall attend a mandatory pre-construction
conference, conducted by the Engineer 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 Contractor 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 Contractor 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 at the time of opening of Bids (or, on the Effective Date of
the Contract if there were no Bids) 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, the Contractor or the Engineer, or
any of their consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective to
assign to the Engineer, or any of the Engineer’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 Engineer as
provided in section 9.4.
3.1.2. If, during the performance of the Work, Contractor finds a conflict, error or discrepancy in the Contract
Documents, the Contractor shall so report to the engineer and the City in writing at once and before proceeding with the
Work affected thereby and shall obtain a written interpretation or clarification from the Engineer.
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:
3.2.1. A formal Amendment of the Contract for Construction;
3.22 A Change Order pursuant to paragraph 10.3. As indicated in Article 11 Contract Price 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 Engineer’s approval of a Shop Drawing or sample (pursuant to paragraphs
6.18.5 and 6.18.6); or,
3.2.3.3. The Engineer’s written interpretation or clarification (pursuant to paragraph 9.4).
3.3 Reuse of Documents:
Neither the Contractor nor any Subcontractor or Supplier or other person or organization performing or furnishing any
of the Work under a direct or indirect contract with the City shall have or acquire any title to or ownership rights in any
of the design details, drawings or specifications.
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3.4 Precedence of Contract Documents:
The Contract governs over the Contract Documents. A Change Order governs over all other Contract Documents
impacted by change. The Special Conditions govern over the General Conditions.
ARTICLE 4 - AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS
4.1 Availability of Lands:
The City shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed,
rights-of-way and easements for access thereto. The Contractor 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 Engineer in
preparation of the Contract Documents. The Contractor may reasonably rely upon the accuracy of the technical data
contained in such reports, but not upon non-technical data, interpretations or opinions contained therein or for the
completeness thereof for the Contractor's purposes. Except as indicated in the immediately preceding sentence and in
paragraph 4.2.6. the Contractor shall have full responsibility with respect to subsurface conditions at the site. Contractor
shall not, by virtue of this paragraph, be relieved from exercising ordinary skill and competence with respect to reliance
upon the accuracy of the technical data contained in such reports.
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 Engineer in preparation of the
Contract Documents. The Contractor may reasonably rely upon the accuracy of the technical data contained in such
drawings, but not for the completeness thereof for the Contractor's purposes. Except as indicated in the immediately
preceding sentence and in paragraph 4.2.6. the Contractor shall have full responsibility with respect to physical
conditions in or relating to such structures. The Contractor shall not, by virtue of this paragraph, be relieved from
exercising 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 Contractor believes that:
4.2.3.1. Any technical data on which the Contractor is entitled to rely as provided in
paragraphs 4.2.1 and 4.2.2 is inaccurate; or
4.2.3.2. Any physical condition uncovered or revealed at the site differs materially from
that indicated, reflected or referred to in the Contract Documents,
Then, the Contractor shall promptly, after becoming aware thereof and before performing any Work in
connection therewith (except in an emergency as permitted by paragraph 6.22) notify the City and the Engineer
in writing about the inaccuracy or difference.
4.2.4. ENGINEER’S REVIEW: The Engineer will promptly review the pertinent conditions, determine the necessity
of obtaining additional explorations or tests with respect thereto and advise the City in writing (with a copy to the
Contractor) of the Engineer's findings and conclusions.
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4.2.5. POSSIBLE DOCUMENT CHANGE: If the Engineer concludes that there is a material error in the Contract
Documents or that because of newly discovered conditions 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, will be allowable to the extent that
they are attributable to any such inaccuracy or difference as described in Section 4.2.3. The Contractor shall meet and
obtain approval from the City Engineer or his/her designee 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 or the Engineer 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 and the Engineer shall not be responsible for the accuracy or completeness of any such
information or data; and,
4.3.1.2. The Contractor 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 6.20 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 or approved as a Change Order.
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 Contractor could not reasonably have been
expected to be aware of, Contractor 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 and the Engineer. The Engineer 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 will be
amended or supplemented to the extent necessary. During such time, Contractor shall be responsible for the safety and
protection of such Underground Facility as provided in paragraph 6.16.1. The Contractor shall 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
Contractor could not reasonably have been expected to be aware of such Underground Facility and subject to acceptance
and approval by the Engineer.
4.4 Reference Points:
4.4. The City shall provide engineering surveys to establish reference points for construction which in the
Engineer’s judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for
laying out the Work (unless otherwise specified in the General Requirements), 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
Contractor shall report to the Engineer 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 Contractor 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
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land and monuments and property marks until the Engineer has witnessed or otherwise referenced their location and
shall not remove them until directed.
4.5.2. The Contractor 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 Contractor in the execution of the Work, or in consequence of the non-
execution thereof by the Contractor, 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 Engineer.
4.5.6. Specific areas of vegetation and other environmental features to be protected shall be staked, fenced, or otherwise
marked in the field by the Engineer. However, the fact that areas of vegetation and other environmental features are not
marked shall not necessarily mean that those items are expendable. The Contractor 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 Engineer for approval prior 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 these General
Conditions.
4.5.7. If the fence, staking or marking is knocked down or destroyed by the Contractor, the Architect shall suspend the
Work in whole or in part, until the fence or other protection is repaired to the Engineer’s satisfaction at the Contractor's
expense. Time lost due to such suspension shall not be considered a basis for adjustment of Contract Time or for
compensation to the Contractor.
4.5.8. If the Contractor disturbs any of the landscape not called for removal, he/she shall restore those areas as directed
at the Contractor's expense.
4.5.9. The City may require that the Contractor replant an area that is damaged. The Work shall be done as directed by
the Engineer. If the Contractor is deemed to be responsible, then the replanting shall be done by the Contractor 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 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 Contractor at his/her expense. If he/she
fails to do so within a reasonable length of time as determined by the Engineer 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
Contractor. 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.
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4.5.10.3. Any deduction assessed as liquidated damages under this section shall not relieve the Contractor from
liability for any damages or costs resulting from delays to the City, traveling public or other contractors.
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 Contractor shall at no additional cost to the City conduct tests the Contractor deems necessary to determine the
existence of Hazardous Materials by appropriately licensed Subcontractors or entities. The City shall reimburse the
Contractor for the invoice costs of the tests, only in the event that the Contractor furnishes the City with certified test
data and results which confirm the existence of Hazardous Materials.
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, which property is within the Project right-
of-way, the City shall, upon the request of the Contractor, 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 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 Contractor'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, including the Contractor, other than
an agency of the executive branch of State or Federal Government, the Contractor shall at the Contractor'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 prior 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 Contractor.
4.6.5. The Contractor shall provide the Engineer with a written certification each time materials or equipment is brought
onto the Work site that such materials or equipment do not contain Hazardous Materials.
4.6.6. The Contractor 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 Contractor Representations
By executing the Contract, the Contractor 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. Contractor 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 all the Contractor'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 Two Years from the date of project closure, except as
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otherwise provided by the Contract Documents. The Contractor shall also furnish such other Bonds as are required by
the Special Conditions. All Bonds shall be in the forms prescribed by Law or Regulation or by the 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 Contractor 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, Contractor shall within five
days thereafter substitute another Bond and Surety, both of which must be acceptable to the City.
5.2 Indemnification:
Professional 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 arising 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 and for an
amount represented by the degree or percentage 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 wrongful act, omission, error, professional error, mistake, negligence, or
other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent
of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation
claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional
agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or
demands at the sole expense of the Professional, 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. 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 Profes-
sional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or
employees.
5.3 Contractor's Insurance:
5.3.1. The Contractor 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 Contractor 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
Contractor 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. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and
maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do
not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall
be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained
to cover all liability, claims, demands, and other obligations assumed by the Contractor 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. Worker'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 Worker's Compensation requirements of this paragraph.
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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 contractors, products, and completed
operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy
shall contain a severability 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 Contractor'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 Contractor has no owned automobiles, the requirements of this Section 5.4.2.3 shall
be met by each employee of the Contractor providing services to the City under this contract.
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 primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not
contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above
shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor
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 Contractor'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 prior to commencement of the contract. No other form
of certificate shall be used. The certificate shall identify this contract and shall provide that the 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 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. 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 Contractor 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.
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 Contractor.
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 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 Proposer 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 Proposer.
Location of operations shall be: "All operations and locations at which work in connection with the referenced
project is done "of operations shall be: "All operations and locations at which work in connection with the
referenced project is done."
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Certificates of Insurance for all renewal policies shall be delivered to the Architect 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 Contractor 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
Contractor to City upon demand, or City may offset the cost of the premiums against moneys due to Contractor from
City.
5.3.7. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto.
5.4 City's Liability Insurance:
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 CIRSA policies and
manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal
business hours. City makes no representations whatsoever with respect to specific coverage offered by CIRSA. City
shall provide Contractor reasonable notice of any changes in its membership or participation in CIRSA.
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 Contractor by the City for any injury 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 - CONTRACTOR'S RESPONSIBILITIES
6.1 General Responsibilities:
6.1.1. The Contractor shall perform all of the Work in conformance with the Contract Documents.
6.1.2. The Contractor 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.
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 Contractor'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 Contractor. 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 Contractor 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 Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures
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of construction. The Contractor shall be responsible to see that the finished Work complies accurately with the Contract
Documents.
6.2.2. The Contractor 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 and the Engineer except under extraordinary circumstances.
The superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the
Contractor. All communications given to the superintendent shall be as binding as if given to the Contractor.
6.3 Labor, Materials and Equipment:
6.3.1. The Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and
perform construction as required by the Contract Documents. The Contractor 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
during regular working hours, and the Contractor will not permit overtime work or the performance of Work on
Saturday, Sunday or any legal holiday without the City's written consent given after prior written notice to the Engineer.
6.3.2. Unless otherwise specified in the Specific Conditions or Specific Provisions, the Contractor 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 Engineer, the Contractor 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 Engineer, or any of the Engineer’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
paragraph 9.10.1. or 9.10.2.
6.4 - 6.6 Reserved
6.7. Work Schedule:
6.7.1. The Contractor shall submit to the Engineer 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.
6.7.2. Prior to beginning of Work and or before the Pre-construction Conference, the Contractor 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.
6.8 Substitutes of "or-equal" Items:
6.8.1. 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 intended to establish the type, function
and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or
equipment of other Suppliers may be accepted by the engineer if sufficient information is submitted by the Contractor to
allow the Engineer to determine that the material or equipment proposed is equivalent or equal to that named. The
Engineer 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 Engineer from anyone other than the Contractor. If the
Contractor wishes to furnish or use a substitute item of material or equipment, the Contractor shall make written
application to the Engineer 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
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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 Contractor'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 contractors affected by the resulting change, all of which shall be considered by Architect in evaluating the
proposed substitute. The Engineer may require the Contractor to furnish at Contractor's expense additional data about
the proposed substitute.
6.8.2. If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the
Contract Documents, the Contractor may furnish or utilize a substitute means, method, sequence, technique or procedure
of construction acceptable to the Engineer. The procedure for review by the Engineer shall be similar to that provided in
paragraph 6.8.1.
6.8.3. The Engineer will be allowed a reasonable time within which to evaluate each proposed substitute. The Engineer
will be the sole judge of acceptability, and no substitute will be ordered, installed or utilized without the Engineer’s prior
written acceptance which will be evidenced by an approved Shop Drawing. The City may require the Contractor to
furnish at the Contractor's expense a special performance guarantee or other surety with respect to any substitute. The
Engineer will record time required by the Engineer and the Engineer’s consultants in evaluating substitutions proposed
by the Contractor and in making changes in the Contract Documents occasioned thereby. Whether or not the Engineer
accepts a proposed substitute, the Contractor shall reimburse the City for the charges of the Engineer and the Engineer’s
consultants for evaluating each proposed substitute.
6.9 Subcontractors, Suppliers and Others:
6.9.1. The Contractor shall not employ any Subcontractor, Supplier or other person or organization (including those
acceptable to the City and the Engineer as indicated in paragraph 6.9.2), whether initially or as a substitute, against
whom the City or the Engineer may have reasonable objection.
6.9.2. If the Special Conditions require the identity of certain Subcontractors, Suppliers or other persons or
organizations including those 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 the Agreement for acceptance by the City and the
Engineer and if the Contractor has submitted a list thereof in accordance with the Special Conditions, the City's or the
Engineer’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 Contractor shall submit an acceptable substitute, the Contract Price will be increased by the difference in
the cost occasioned by such substitution and an appropriate Written Notice of Amendment signed. No acceptance by
the City or the Engineer of any such Subcontractor, Supplier or other person or organization shall constitute a waiver of
any right of the City or the Engineer to reject Defective Work.
6.9.3. The Contractor shall be fully responsible to the City and the Engineer 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 Contractor just as Contractor is responsible for Contractor's own acts and omissions. Nothing
in the Contract Documents shall create any contractual relationship between the City or the Engineer and any such
Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the part of the City or the
Engineer 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
Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any
specific trade.
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6.9.5. All Work performed for Contractor by a Subcontractor will be pursuant to an appropriate agreement between
the Contractor 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 the Engineer and contain waiver provisions as required by
Section 5.3. The Contractor shall pay each Subcontractor a just share of any insurance moneys received by the
Contractor on account of losses.
6.10 Subcontracting and Percentage of Work Awarded to Subcontractor(s):
6.10.1. The Contractor 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 Contractor shall not award Work to Subcontractor(s) in excess of forty nine percent (48%) of the Contract
Price. This condition shall be a minimum standard for a qualified Prime Contractor to perform within the City rights of
way.
6.11 Patent Fees and Royalties:
The Contractor 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. Contractor shall indemnify and hold harmless the City and the Engineer and anyone
directly or indirectly employed by either of them 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, the Contractor shall obtain and pay for all construction permits and
licenses. The City shall assist the Contractor, when necessary, in obtaining such permits and licenses. The Contractor
shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable
at the time of opening of Bids on the Effective Date of the Contract. The Contractor shall pay all charges of utility
City’s 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.
6.13 Laws and Regulations:
6.13.1. the Contractor 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, neither the
City nor the Engineer shall be responsible for monitoring the Contractor's compliance with any Laws or Regulations.
6.13.2. If the Contractor observes that the Specifications or Drawings are at variance with any Laws or Regulations,
the Contractor shall give the Engineer prompt written notice thereof, and any necessary changes will be authorized by
one of the methods indicated in paragraph 3.4. If the Contractor performs any Work knowing or having reason to know
that it is contrary to Laws or Regulations, and without such notice to the Engineer, the Contractor shall bear all costs
arising therefrom.
6.14 Taxes:
The Contractor shall pay all existing and future applicable Federal, State and local sales, consumer, use and other similar
taxes whether direct or indirect. Federal excise tax may not apply to materials purchased by the City. The Contract Price
shall include all other Federal, State, and/or local direct or indirect taxes which do apply. 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 Contractor shall not be reimbursed separately for any taxes which may apply
except as provided in the Contract Documents and the Contractor shall be responsible for all taxes which may apply.
The City is tax exempt from Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The City is exempt
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from such taxes under registration numbers 98-02624. The Contractor and its Subcontractors shall apply to the Colorado
Department of Revenue for a Certificate of Exemption indicating that the Contractor 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 Contractor shall confine construction equipment, the storage of materials and equipment and the
operations of workers to the Project 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 Contractor 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 or the
Engineer by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with
such other party by agreement or otherwise resolve the claim by law. The Contractor shall, to the fullest extent
permitted by Laws and Regulations, indemnify and hold the City and the Engineer 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 or the Engineer to the extent based on a claim arising out of the Contractor's
performance of the Work.
6.15.2. During the progress of the Work, the Contractor 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 Contractor 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
Contractor shall restore to original condition all property not designated for alteration by the Contract Documents.
6.15.3. The Contractor shall not load or permit any part of any structure to be loaded in any manner that will endanger
the structure, nor shall the Contractor subject any part of the Work or adjacent property to stresses or pressures that will
endanger it.
6.16 Record Documents:
The Contractor 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 Engineer
for reference. Upon completion of the Work, these record documents, samples and Shop Drawings will be delivered to
the Engineer for the City.
6.17 Safety and Protection:
6.17.1. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the Work. The Contractor 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.
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The Contractor 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 Contractor 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 Contractor, 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 Contractor. The Contractor'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 Engineer has issued a notice to the City and the Contractor 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 Contractor 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
Contractor, without special instruction or authorization from the Engineer or the City, is obligated to act to prevent
threatened damage, injury or loss. The Contractor shall give the Engineer prompt written notice if the Contractor
believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby.
If the Engineer 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:
6.19.1. After checking and verifying all field measurements and after complying with applicable procedures specified
in the Contract Documents, the Contractor shall submit to the Engineer 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 written indication that the Contractor has satisfied the Contractor's responsibilities under the
Contract Documents with respect to the review of the submission. All submissions will be identified as the Engineer
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 Engineer to review the information as required.
6.19.2. The Contractor shall also submit to the Engineer for review and approval with such promptness 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 Contractor has satisfied the Contractor'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 Contractor 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 Contractor shall give the Engineer 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 Engineer for review and approval of each
such variation.
6.19.5. The Engineer will review and approve with reasonable promptness Shop Drawings and samples, but the
Engineer’s review and approval will be only for conformance with the design concept of the Project and for compliance
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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 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
Contractor shall make corrections required by the Engineer, and shall return the required number of corrected copies of
Shop Drawings and submit as required new samples for review and approval. The Contractor shall direct specific
attention in writing to revisions other than the corrections called for by the Engineer on previous submittals.
6.19.6. The Engineer's review and approval of Shop Drawings or samples shall not relieve the Contractor from
responsibility for any variation from the requirements of the Contract Documents unless the Contractor has in writing
called the Engineer’s attention to each such variation at the time of submission as required by paragraph 6.19.4 and the
Engineer 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 Engineer relieve the Contractor from
responsibility for 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
Engineer’s review and approval of the pertinent submission will be the sole expense and responsibility of the Contractor.
6.20 Mechanics' Liens:
6.20.1. The Contractor 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 Contractor, 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 Contractor 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
Contractor 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 Contractor also agrees as above for all of its Subcontractors, including but not limited to suppliers and
employees. If any of the Contractor'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
Contractor 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 Contractor'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 Contractor, the expense to include legal fees and disbursements. The Contractor 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
Contractor.
6.20.3. The Contractor 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 Contractor on other accounts or contracts. The Contractor shall pay Subcontractors within Ten (10) consecutive
calendar days of receipt of a progress payment from the City. The Contractor 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 Contractor, 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.
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6.21 Continuing the Work:
The Contractor 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 Contractor and the City may otherwise agree in writing.
6.22 Contractor Facilities:
All temporary contractor 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 Contractor,
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 Contractor only with the written
approval of the City and shall be built or provided with labor and materials furnished by the Contractor without expense
to the City. Such temporary buildings and utilities shall remain the property of the Contractor 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 these.
The Contractor shall perform and coordinate his/her activities with other Contractors to avoid conflict and minimize
disruptions.
7.1.2. The Contractor shall afford each utility owner and other contractor 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 Contractor 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
Contractor 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 written consent of Architect and the others whose work will be affected. The duties and
responsibilities of Contractor under this paragraph are for the benefit of such utility owners and other contractors to the
extent that there are comparable provisions for the benefit of the Contractor in said direct contracts between the City and
such utility owners and other contractors.
7.1.3. If any part of the Contractor's Work depends for proper execution or results upon the work of any such other
contractor or utility owner (or the City), the Contractor shall inspect and promptly report to the Engineer in writing any
delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results.
The Contractor's failure to report such conditions will constitute an acceptance of the other work as fit and proper for
integration with the Contractor'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 contractors 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 Engineer shall have any authority or responsibility in respect of such coordination.
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ARTICLE 8 - CITY'S RESPONSIBILITIES
8.1. The City shall issue all communications to the Contractor through the Engineer 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 Contractor 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 requiring additional compensable work, which work causes the aggregate
amount appropriated by the City, unless the Contractor is given a written assurance that a lawful appropriations to cover
the costs of the additional work shall be made.
ARTICLE 9 - ENGINEER’S STATUS DURING CONSTRUCTION
9.1 City's Representative:
The Engineer shall be the City's representative during the construction period. The duties and responsibilities and the
limitations of authority of the Engineer as the City's representative during construction are set forth in the Contract
Documents and shall not be extended without written consent of the City and the Engineer.
9.2 Visits to Site:
The Engineer 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 Engineer shall make on-site inspections to observe the quality or quantity of the Work.
The Engineer’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 Engineer 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 Project Representation:
If the City and the Engineer agree, the Engineer will furnish a Resident Project Representative to assist the Engineer in
observing the performance of the Work. The duties, responsibilities and limitations of authority of any such Resident
Project Representative and assistants will be to ensure conformance of work with specifications provided in the Special
Conditions. If the City designates another agent to represent the City at the site who is not the Engineer’s agent or
employee, the duties, responsibilities and limitations of authority of such other person will be as provided in the Special
Conditions.
9.4 Clarification and Interpretations:
The Engineer 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 Engineer 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 Contractor shall meet
with the Engineer and resolve the issue. All such requests or claims shall be submitted to the City Engineer.
9.5 Authorized Variations in Work and Minor Contract Revisions:
The City Engineer 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 written request or a field order and will be
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binding on the City, and also on the Contractor who shall perform the Work involved promptly. If the Contractor
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 Contractor may make a claim therefor as provided herein.
9.6 Rejecting Defective Work:
The Engineer will have authority to disapprove or reject Work which the Engineer 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. In connection with the Engineer’s responsibility for Shop Drawings and samples, see paragraphs 6.19.1.
through 6.20.1. inclusive.
9.7.2. In connection with the Engineer’s responsibilities as to Change Orders, see Article 10 and Article 11.
9.7.3. In connection with the Engineer’s responsibilities in respect of request for Payment, etc., see Article 14.
9.8 Decisions on Disputes:
9.8.1. The Engineer 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 Contractor 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 Engineer in writing with a request for a formal decision in accordance
with this paragraph, which the Engineer will render in writing within a reasonable time. Written notice of each such
claim, dispute and other matter by the Contractor will be delivered to the Engineer 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
Engineer and the City within sixty days after such occurrence unless the Engineer 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 Engineer 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 Contractor of such rights or remedies as the
Contractor 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 Engineer of the requirements of
the Contract Documents, judgment on the acceptability of the Work thereunder, or formal decision made by the
Engineer in accordance with paragraph 9.8.1. Any dispute not resolved by the initial decision of the Engineer shall be
decided by the City, who shall reduce the decision in writing and furnish a copy thereof to the Contractor and the
Engineer. 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 Contractor shall proceed diligently with the performance of
the Work and in accordance with the Engineer’s interpretation.
9.9 Reserved
9.10 Limitations on Engineer’s Responsibilities:
9.10.1. Neither the Engineer’s authority to act under this Article 9 or elsewhere in the Contract Documents nor any
decision made by the Engineer in good faith either to exercise or not exercise such authority shall give rise to any duty or
responsibility of the Engineer to the Contractor, 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
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“satisfactory” or adjectives of like effect or import are used to describe a requirement, direction, review or judgment of
the Engineer as to 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 Engineer 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 Contractor 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. The Contractor 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 the Contract for Construction.
10.1.3. The following procedure shall be followed for the City notifying the Contractor of proposed City initiated
changes. The Engineer shall issue a notice informing the Contractor of a planned change in the Work and its scope, and
requesting the Contractor’s detailed price proposal. The Contractor, at no expense to the City, shall submit a priced
proposal for performing the proposed change in the Work. The Contractor, within Ten (10) consecutive calendar days
after receiving the Notice of Change, or such longer time which the Engineer in his/her discretion has granted, shall
provide the Engineer 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 Contractor 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 Contractor 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 Contractor must proceed immediately to perform a change in the Work
in order to avoid an adverse impact on the schedule or other unchanged Work, and sufficient time is
not available to negotiate an adjustment to the Contract Price or Contract Time; or
b) The City and Contractor have not completed their negotiation and reached agreement on all of the
terms of a Change Order, but the City requires the Contractor to proceed without such agreement.
10.2.2. Upon receipt of a Written Notice of Change the Contractor shall promptly proceed with performing the change
in the Work. Additionally, the Contractor shall comply with all the requirements of 10.3 of these General Conditions.
10.3 Change Order
When the Contractor 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 Contractor Change Request
10.41. If the Contractor: (i) receives any oral or written instructions, directives or interpretations of Contract
Documents, or determinations from the Engineer 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
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Contract Price or Contract Time, the Contractor shall give the Engineer prompt written notice of such matters in a letter
or notice denominated “Contractor Change Request”.
10.4.2. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event
which the Contractor believes may require an extension in time or price. The Contractor shall also provide descriptions
of possible Contractor actions or solutions to minimize the cost of the Contractor 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 Contractor Change Request shall be submitted before the Contractor acts on
them, but in no event more than Ten (10) consecutive calendar days after they were received or discovered.
10.8.4. With respect to any differing site conditions, a Contractor 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 Contractor Change Request shall be submitted as soon as the Contractor has
knowledge of the delay, but in no event more than Ten (10) consecutive calendar days therefrom.
10.8.6. With respect to any matters or circumstance which the Contractor believes would require a change, including
delays, a Contractor Change Request shall be submitted as soon as the Contractor has knowledge of the matter or
circumstance, but in no event more than Ten (10) consecutive calendar days after the Contractor becomes aware of such
circumstance or matter.
10.5 Down Time:
The Contractor may be granted time extension for down time. No other compensation of any kind shall be made to the
Contractor 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 Contractor does not submit a Contractor Change Request within the time required above, any action by
the Contractor 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 Contractor waives any claim for an adjustment on the Contract Price or the Contract Time.
10.6.2. The Contractor shall, within Ten (10) consecutive calendar days submit in detail, a Contractor Change
Request, and provide the Engineer 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 Contractor Change Request. If the Contractor does not submit its itemized proposal within the time
described above or within such extension which the Engineer, 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 Contractor Change Request is denied by the Engineer, 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 Contractor Change Request is waived
unless the Contractor 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.
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All adjustments to the Contract Price shall be determined by using one or more of the following methods:
11.1.1 A negotiated lump sum for work items that cannot be itemized. The Contractor shall promptly provide suffi-
cient substantiating data, including calculations, measurements, cost records, production rates, equipment types and
capacity, labor costs by craft and other information which the City may reasonably require the Contractor to produce in
order to permit the City to evaluate the Contractor's lump sum change order proposals. In pricing this proposal, the
Contractor 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 agreed upon multiplied by final verified quanti-
ties of work performed;
11.1.3 Cost to be determined in a manner agreed upon by the parties which includes markups that do not exceed those
set forth in Section 11.4 below.
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 Contractor 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 Contractor 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 Contractor's control, then the Contract
Time shall be extended by the City. Such extensions will be for a period of time as the City may in its discretion
determine, provided however that such delay could not have been avoided by the exercise of due diligence by the
Contractor and did not result from the acts or omissions of the Contractor and, provided further, that they Contractor 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 of Aspen Engineering Department’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 Contractor 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 Contractor 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 Contractor be entitled to recover any delay costs
caused by the acts or omissions of the Contractor, its employees or agents.
11.2.5. If the Contractor believes that it has suffered delays in performing the Work that are caused by acts or
omissions of the City, the Contractor may submit a Contractor Change Request with detailed justifications acceptable to
the Engineer. Failure of the Contractor 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 Contractor 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 Contractor shall keep and present, in
such form as the City may prescribe, an itemized detailed accounting together with appropriate supporting data of all of
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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 that 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 Contractor 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 Engineer which are signed by the Contractor and the
Engineer. Such costs shall form the basis for determining the maximum amount to be paid the Contractor, 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 of Aspen Engineering Department’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 Contractor's labor for all work associated
with the change. Contractor'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. Contractor's actual costs for workers 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 Contractor 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 (COE) in its latest edition of the "Construction Equipment Ownership and Operating
Expense Schedule, Region V" (Document No. EP 1110-1-8, Volume 5).
(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 Engineer 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.
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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 Contractor 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 Contractor or subcontractor.
(2) Two percent (2%) of Section 11.4.6 above to cover Contractor's and subcontractor's
overhead and profit for work performed by the Contractor or subcontractor.
(3) Neither the Contractor 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 subcontractors at any tier are involved.
11.4.8 Totals as Equitable Adjustment. The Contractor 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
Contractor’s choice of idling and Down Time shall not constitute an City’s cause for delay or disruption.
11.5 Cost and Pricing Data
11.5.1 Certificate of Current Cost or Pricing Data. The Contractor 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:
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 from suppliers and
subcontractors. This certification includes the cost of pricing data sup-
porting any advance agreements and forward pricing rate agreements
between the offer 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 negotiations were concluded and price agreement reached.
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11.5.2 Vendor Statements. The Contractor 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 Pricing Data. If it is later determined that pricing adjustments to the
Contract were not correct due to incomplete or inaccurate pricing data by the Contractor 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 Contractor and the Engineer. 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 Contractor may request in writing, an extension of time only.
ARTICLE 12 - Reserved
ARTICLE 13 - WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION,
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
13.1 Warranty:
13.1.1. The Contractor warrants and guarantees to City that all Work, whether supplied, furnished, installed, provided,
or performed by Contractor, 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, Contractor warrants Work, whether furnished, installed, provided, performed or supplied
by Contractor, 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 Contractor, at no additional expense to the City, shall remedy damage to equipment, the site, or the
buildings or the contents thereof that is the result of any failure or defect in the Work, and restore any work damaged in
fulfilling the requirements of the Contract Documents.
13.1.3. With respect to all warranties, express or implied, from Subcontractors, manufacturers, or Suppliers for Work
performed and materials furnished under the Agreement, the Contractor 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
Contractor 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
Engineer or.
13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the Engineer.
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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 Contractor 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 Contractor, and shall be in conformance with the Technical Specifications and
Contractor's Proposal (except in those instances where the Contractor'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 Five (5) Years from the date each piece of equipment incorporated into the Work or any subsystem is
accepted by the City, it appears that the equipment or any part thereof does not conform to the above warranty and
guarantee provisions, and the City so notifies the Contractor within a reasonable time after its discovery, the Contractor
shall thereupon promptly correct such nonconformity to the satisfaction of the City, at the Contractor'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 Contractor's performance by the most expeditious means available, the cost of cover or
correction shall be charged to the Contractor.
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 Contractor.
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 Contractor 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 Contractor.
13.1.7. The above warranties or other warranties agreed to by Contractor 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 Contractor'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 Engineer and the Engineer’s representatives, 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. Contractor shall provide proper and safe conditions for such access.
13.3 Tests and Inspections:
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13.3.1. The Contractor shall cooperate with material testing persons and firms, and for required inspections, and
compliance and approval tests for the Work performed by the Contractor 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 Contractor shall assume full responsibility therefore, pay all costs in connection
therewith and furnish the Engineer the required certificates of inspection, testing or approval. The Contractor 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 or the Engineer’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 Contractor's purchase thereof for incorporation in the
Work. The cost of all inspections, testing, re-testing and approvals in addition to the above that are required by the
Contract Documents shall be paid by the Contractor (unless otherwise specified). The City will conduct and pay for the
conformance tests on materials installed in-place, and the Contractor 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 Engineer.
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 Engineer, it must, be uncovered for observation. Such uncovering and testing when required by the
Engineer shall be at the Contractor's expense.
13.3.5. Neither observations by the Engineer nor inspections, tests or approvals by others shall relieve the Contractor
from the Contractor'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 Engineer it must, if requested by the Engineer, be
uncovered for the Engineer’s observation and replaced at the Contractor's expense.
13.4.2. If the Engineer considers it necessary or advisable that covered Work be observed by the Engineer or inspected
or tested by others, the Contractor, at the Engineer’s request, shall uncover, expose or otherwise make available for
observation, inspection or testing as the Engineer may require, that portion of the Work in question, furnishing all
necessary labor, material and equipment. If it is found that such Work is Defective, the Contractor 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 professionals),
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 Contractor fails to supply 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 Contractor 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 give rise to any duty on the part of the City to
exercise this right for the benefit of the Contractor or any other party.
13.6 Correction or Removal of Defective Work:
If required by the Engineer or the City, the Contractor 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 Engineer or the City, remove
it from the site and replace it with non-defective Work. The Contractor 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.
13.7 Correction Period:
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If within Two Years after the date of Substantial Completion or such longer period of time as may be prescribed by Laws
or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any
specific provision of the Contract Documents, any Work is found to be Defective, the Contractor shall promptly without
cost to City and in accordance with City's written instructions, either correct such Defective Work, or, if it has been
rejected by City, remove it from the site and replace it with non-defective Work. If the Contractor does not promptly
comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage,
the City may have the Defective Work corrected or the rejected Work removed and replaced, and all direct, indirect and
consequential costs of such removal and replacement (including but not limited to fees and charges of engineers,
architects, attorneys and other professionals) will be paid by the Contractor. In special circumstances where a particular
item of equipment or portion of Work is placed in continuous service before Substantial Completion of all the Work, the
correction period for that item may start to run from an earlier date if so provided in the Specifications or by Written
Amendment. Landscaping replacement shall be warranted for two growing season.
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 Contractor 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 and the City Engineer.
13.9 City May Correct Defective Work:
If the Contractor fails within Ten (10) consecutive calendar days after written notice of the Engineer or the City to
proceed to correct and to correct Defective Work or to remove and replace rejected Work as required by the Engineer or
the City in accordance with paragraph 13.6., or if the Contractor fails to perform the Work in accordance with the
Contract Documents, or if the Contractor fails to comply with any other provision of the Contract Documents, the City
may, after seven days' written notice to the Contractor, 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 Contractor from all or part of the site, take possession of all or part of
the Work, and suspend the Contractor's services related thereto, take possession of the Contractor'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 Contractor but which are stored elsewhere. The Contractor 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 Contractor, 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 Contractor's Defective Work. The Contractor 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.
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
Contractor will receive no compensation therefore. If required by the City, unauthorized work will be remedied,
removed, or replaced by the Contractor at the Contractor's expense.
ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION
14.1 Determination of Work Value:
The Work quantities recorded on the City of Aspen Engineering Department’s Daily Construction Log forms shall serve
as the basis for preparation and justification of the progress payments. Payments to the Contractor shall be prepared on
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the City of Aspen Engineering Department’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 Contractor is performing
satisfactorily under the terms of the Contract Documents. Said payments shall be based upon progress estimates
prepared by the Engineer, 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 these General Conditions. The amount of the progress
estimate to be paid to the Contractor 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: for contract price over $150,000.00 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) When one hundred Percent (100%) of the Work has been complete, the Project Manager may, at his/her
discretion, reduce the retained amount by fifty percent (50%) of the required retainage.
b) Upon one hundred percent (100%) completion and acceptance of the project, the Project Manager may
reduce the retainment to fifty percent 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.
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.
14.2.3. 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 Engineer.
14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work,
the Contractor is responsible for prompt payments to all Subcontractors. As a minimum, the Contractor is responsible
for prompt payments to all Subcontractors. As a minimum, the Contractor shall incorporate provisions in all
subcontracts to satisfy the following requirements:
14.2.4.1. The Contractor 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 Contractor 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 Contractor and Subcontractor;
The Contractor shall make payments to Subcontractors within 10 days of receipt of the City's payment to the
Contractor;
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 Contractor's Warranty of Title:
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The Contractor 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 Engineer’s Review of Progress Payments.
14.4.1. The Engineer’s recommendation of any payment requested in an Application for Payment will constitute a
representation by the Engineer to the City, based on the Engineer’s on-site observations of the Work in progress and on
the Engineer’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 Engineer’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 quantities and classifications for Unit Price Work in the Bid Proposal form, and to any other
qualifications stated in the recommendation); and that the Contractor is entitled to payment of the amount recommended.
However, by recommending any such payment the Engineer 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 Engineer in the Contract Documents or that there may not be other matters or
issues between the parties that might entitle the Contractor to be paid additionally by the City or the City to withhold
payment to Contractor.
14.4.2. The Engineer may refuse to recommend the whole or any part of any payment if, in the Engineer’s opinion, it
would be incorrect to make such representations to the City. The Engineer 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 Engineer’s opinion to protect the City
from loss because:
14.4.2.1. The Work is Defective, or completed Work has been damaged requiring
correction or replacement;
14.4.2.2. The Contract Price has been reduced by Written 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 Engineer’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 Engineer because claims have been made
against the City on account of the Contractor'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 Contractor immediate written notice (with a copy to the Engineer) stating the reasons for such action.
14.5 Substantial Completion:
14.5.1. The date accepted by the City when the construction of all Work items in the project or a specified part thereof
is One hundred percent (100%) completed, in accordance with the Contract Documents, so that the project or specified
part can be utilized for the purpose for which it is intended shall establish substantial completion for the project or for a
specified part.
14.5.2. When the Contractor considers the entire Work ready for its intended use, the Contractor 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 Engineer shall notify the Contractor 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
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items, the City must conduct a final inspection and upon acceptance by the City, the Contractor 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, the Engineer and the Contractor agree constitutes a separately functioning and useable part of the Work
that can be used by the City without significant interference with the Contractor's performance of the remainder of the
Work, may be accomplished prior to Final Completion of all the Work subject to the following:
14.6.1. The City at any time may request the Contractor 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 Contractor agrees, the
Contractor will certify to the City and the City Engineer that said part of the Work is substantially complete.
14.7 Final Inspections:
Upon written notice from the Contractor that the entire Work or an agreed portion thereof is complete, the City will
make a final inspection with the Engineer and the Contractor and will notify the Contractor in writing of all particulars in
which this inspection reveals that the Work is incomplete or Defective. The Contractor 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 Contractor and the
Engineer immediately.
14.8 Final Progress Payment:
14.8.1. After the Contractor has completed all such corrections to the satisfaction of the City and delivered all
maintenance and operating instructions, schedules, guarantees, as-built documentation (as provided in paragraph 6.12)
and other documents - all as required by the Contract Documents, and after the City has indicated that the Work is
acceptable, the Contractor shall deliver to the Engineer a fully executed and notarized Claim Release Form and the City
Engineering Department 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:
If, on the basis of the Engineer’s observation of the Work during construction and final inspection, and the Engineer's
review of the final progress Payment and accompanying documentation - all as required by the Contract Documents, the
Engineer represents to the City that the Work has been completed and the City is satisfied that the Work has been
completed and the Contractor'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 Contractor 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 Contractor 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.
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14.8.2. 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 Contractor to the Engineer. 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 Contractor's Continuing Obligation:
The Contractor'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 Engineer, nor the issuance of a certificate of
Substantial Completion, nor any payment by the City to the Contractor 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 Engineer 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 Contractor's obligation to perform the Work in accordance with the Contract Documents.
14.11 Liquidated Damages:
14.11.1. TIME FOR COMPLETION: It is hereby understood and mutually agreed, by and between the Contractor and
the City, that the date of beginning Work and the time of completion as specified herein are essential conditions of the
Agreement. The Contractor 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
Contractor 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 TO THE AGREEMENT: It is further agreed that time is of the essence in
completing the Work, and that the Project Work Schedule referenced at paragraph 6.9. and the Submittal Schedule
referenced at paragraph 6.3. 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 Contractor shall pay to the City the
amounts specified in the Liquidated Damages Form included in the Contract Documents. This particular provision shall
not be construed as a penalty upon said Contractor 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.
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 the General Conditions, the Contractor 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 Contractor 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
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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
ninety days by notice in writing to the Contractor and will fix the date on which work will be resumed. The Contractor
shall resume the Work on the date so fixed. The Contractor 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 Contractor makes an approved claim therefor as provided in Article 11. Other Work
suspensions such as delayed start or phased construction shall not entitle the Contractor 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 Contractor commences a voluntary case under any chapter of the Bankruptcy Code (Title II,
United States Code), as now or hereafter in effect, or if Contractor 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. If a petition is filed against Contractor 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
Contractor under any other federal or state law in effect at the time relating to bankruptcy or insolvency;
15.2.3. If the Contractor makes a general assignment for the benefit of creditors;
15.2.4. If a trustee, receiver, custodian or agent of Contractor is appointed under applicable law or under
contract, whose appointment or authority to take charge of property of Contractor 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 Contractor's creditors;
15.2.5. If the Contractor admits in writing an inability to pay its debts generally as they become due;
15.2.6. If the Contractor 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);
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15.2.7. If the Contractor disregards Laws or Regulations of any public body having jurisdiction;
15.2.8. If the Contractor disregards the authority of Architect; or,
15.2.9. If the Contractor otherwise violates in any substantial way any provisions of the Contract Documents:
The City may, after giving the Contractor (and the surety, if there be one) seven days written notice and to the extent
permitted by Laws and Regulations, terminate the services of Contractor, exclude the Contractor from the site and take
possession of the Work and of all the Contractor's tools, appliances, construction equipment and machinery at the site
and use the same to the full extent they could be used by the Contractor (without liability to the Contractor for trespass
or conversion), incorporate in the Work all materials and equipment stored at the site or for which the City has paid the
Contractor but which are stored elsewhere, and finish the Work as the City may deem expedient. In such case the
Contractor 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 Contractor. If such costs exceed such unpaid balance, the Contractor shall pay the difference to the
City. Such costs incurred by the City will be approved as to reasonableness by the Engineer 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 Contractor's services have been so terminated by the City, the termination will not affect any rights
or remedies of the City against the Contractor then existing or which may thereafter accrue. Any retention or payment of
moneys due the Contractor by the City will not release the Contractor from liability.
15.2.11. Upon seven days' written notice to the Contractor, 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 Contractor shall be paid
for all Work executed and any expense sustained plus reasonable termination expenses.
15.3 Contractor May Stop Work or Terminate:
If, through no act or fault of the Contractor, the Work is suspended for a period of more than ninety days by the City or
under an order of court or other public authority, then the Contractor may, upon seven days written notice to the City and
the Engineer, 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
Contractor 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.
ARTICLE 16 - MISCELLANEOUS
16.1 Nondiscrimination
During the performance of this Contract, the Contractor agrees as follows:
16.1.1. The Contractor will not discriminate against any employee or applicant for employment because of
race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged
person, or a disabled or Viet Nam era veteran. The Contractor 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
origin, 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
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recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants
for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
16.1.2. The Contractor, 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 person, or a disabled or Viet Nam era veteran in the selection and retention of Subcontractors, including
procurements of materials and leases of equipment.
16.1.3. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the
contractor, 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 Contractor 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 Contractor 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 Viet Nam era veteran.
16.1.5. The Contractor 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 contractor's commitments under this section, and shall post copies of the notice in con-
spicuous 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 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 General:
Should the City or the Contractor 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 these General Conditions and the rights and remedies available
hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations
imposed upon the Contractor by the General Conditions, and all of the rights and remedies available to the City
thereunder, are in addition to, and are 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, right and remedy to which
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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 Contractor shall be, and shall perform as, an independent the Contractor
who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the
Contractor 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 Contractor. 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 Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the
Contractor's agents, employees, servants and subcontractors during the performance of the Contract.
THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO
WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND
STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT.
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 Contractor 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 Contractor for the
purpose of securing business.
16.7.1. The Contractor 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 Contract or to any
solicitation or proposal therefor.
16.7.2. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or
on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person
associated therewith, as an inducement for the award of a Subcontract or order. The Contractor is prohibited from
inducing, by any means, any person employed under this Contract to give up any part of the compensation to which
he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback"
statutes or regulations.
16.8 Payments Subject to Annual Appropriations:
If the contract 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 contract is conditional upon annual appropriation of funds by said governing body and that before
providing services, the Contractor, 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 Contractor Acceptance:
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16.9.1. The acceptance by the Contractor of any payment made on the final completion of Work under these General
Conditions, or of any final payment due on termination , shall constitute a full and complete release of the City from any
and all claims, demands and causes of action whatsoever which the Contractor, has or may have against the City under
the provisions of these Contract Documents.
16.9.2. No action shall be maintained by Contractor, its successors or assigns, against the City or the Engineer on any
claims based upon or arising out of this Contract or out of anything done in connection with this Contract 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.
16.10 Successors and Assigns
This Contract and all of the covenants hereof shall inure to the benefit of and be bidding upon the City and the
Contractor respectively and their agents, representatives, employees, successors, assigns and legal representatives.
Neither the City nor the Contractor 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 Contract 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 Contractor 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 Contractor 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 Contract 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 Contract, the prevailing party shall be
entitled to its costs and reasonable attorney's fees.
16.15 Waiver of Presumption
This Contract 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 Contract.
16.16 Severability Clause:
If any provision of the Contract 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 Contract shall remain in full force and effect.
16.17 Audit and Records
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GC1-971.doc - Page 45
City of Aspen - General Conditions for Construction Contracts
The Contractor shall maintain all data and records pertinent to the Work performed under this Contract, 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 Contract, 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 Contractor 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 Contractor has submitted cost or pricing data in connection with the
pricing of any modification to the Contract, 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 Engineer or a representative of the City shall have the right to examine and audit all books, records,
documents, and other data of the Contractor (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 Contractor 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 Contract, or for any period, if any, as is required by applicable statute or by other articles of this Contract.
16.18.3. If this Contract 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 Contract shall be made available until disposition of such appeals, litigation,
or claims.
Rev. 1/19/01 (Secs. 14.2.1.1 & 13.1.1)
gc1-971
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___________________________________________________________________________________________________________________
CC1-971.doc Page 2 **CC1
Special Conditions. The Contract Documents are included herein by this reference and
made a part hereof as if fully set forth here.
6. The City shall pay to the Contractor in the manner and at such time as set forth in the
General Conditions, unless modified by the Special Conditions, such amounts as
required by the Documents.
7. This Contract for Construction shall be binding upon all parties hereto and their
respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein or in the Contract Documents, this Contract for
Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the
Municipal Code, including the approval requirements of Section 4-08-040. This
agreement shall not be binding upon the City unless duly executed by the City Manager
or the Mayor of the City of Aspen (or a duly authorized official in his/her absence)
following a resolution of the Council of the City of Aspen authorizing the Mayor or City
Manager (or a duly authorized official in his/her absence) to execute the same.
8. This agreement and all of the covenants hereof shall inure to the benefit of and be
binding upon the City and the Contractor respectively and their agents, representatives,
employees. Successors, assigns, and legal representatives. Neither the City nor the
Contractor shall have the right to assign, transfer or sublet his or her interest or
obligations hereunder without the written consent of the other party.
9. 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 Contractor or the City may
assign this Contract for Construction 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 Contractor because of any breach hereof or because of any of the terms,
covenants, agreements or conditions herein contained.
10. 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.
11. The parties agree that this Contract for Construction was made in accordance with the
laws of the State of Colorado and shall be so construed. Venue is agreed to be kept
exclusively in the courts of Pitkin County, Colorado.
12. In the event that legal action is necessary to enforce any of the provisions of this
Contract for Construction, the prevailing party shall be entitled to its costs and
reasonable attorney’s fees.
13. This Contract for Construction was reviewed and accepted 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 Contract for Construction.
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City of Aspen - Special Conditions for Construction Contracts
SC1-971.doc SC1 Page 1
THE CITY OF ASPEN
SPECIAL CONDITIONS
for
Burlingame Pump House
Project No. 2017-081
1.0 GENERAL:
1.01 Clarification of Terms: The Special Conditions are intended to specify and provide
additional description, clarification, or conditions that are applicable to this Contract.
These Special Conditions amend or supplement the Standard General Conditions of
the Construction Contract and other provisions of the Contract Documents as
indicated below. All provisions which are not so amended or supplemented remain
in full force and effect.
2.0 CONTRACT TIME:
2.01 All Work shall be one hundred percent (100%) complete for this project on or before
December 1st, 2017. This date is contingent upon the contractor receiving the permit
as issued by the City of Aspen building department. The Contractor shall be
responsible for implementing all improvements by this date.
3.0 INSPECTIONS AND TESTING:
3.1 Tests, inspections and approvals of portions of the Work shall be made as required by the
Contract Documents and by applicable laws, statutes, ordinances, codes, rules and regulations or
lawful orders of public authorities. Unless otherwise provided, the Contractor shall decide for such
tests, inspections and approvals with an independent testing laboratory or entity acceptable to the
Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections
and approvals. The Contractor shall give the Architect timely notice of when and where tests and
inspections are to be made so that the Architect may be present for such procedures. The Owner shall
bear costs of (1) tests, inspections or approvals that do not become requirements until after bids are
received or negotiations concluded, and (2) tests, inspections or approvals where building codes or
applicable laws or regulations prohibit the Owner from delegating their cost to the Contractor.
3.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the
Work require additional testing, inspection or approval, the Architect will, upon written authorization
from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection
or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the
Architect of when and where tests and inspections are to be made so that the Architect may be present
for such procedures.
3.3 If such procedures for testing, inspection or approval reveal failure of the portions of the Work
to comply with requirements established by the Contract Documents, all costs made necessary by
such failure including those of repeated procedures and compensation for the Architect’s services
and expenses shall be at the Contractor’s expense.
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City of Aspen - Special Conditions for Construction Contracts
SC1-971.doc SC1 Page 2
3.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the Architect.
3.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents,
the Architect will do so promptly and, where practicable, at the normal place of testing.
3.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to
avoid unreasonable delay in the Work.
SPCON1.doc (Revision 2008)_TT_EDIT
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MEMORANDUM
TO: Mayor and Council
FROM : PJ Murray, Civil Engineer I
THROUGH: Trish Aragon, P.E., City Engineer
Justin Forman, P.E., Senior Project Manager
DATE OF MEMO: June 5, 2017
MEETING DATE: June 12, 2017
RE: West Main Street Mobility Plan – Resolution # 95, Series of 2017
Professional Service Contract Approval
REQUEST OF COUNCIL: Staff recommends Council approve and execute the
contract between Alta Planning and Design and the City for the West Main Street
Mobility Plan in the West Main Street and 7th Street neighborhood for $20,000,
which includes contingency.
BACKGROUND: The Aspen Housing Partners presented conceptual site plans
for a project referred to as the Affordable Housing Project at 802 W Main St to
Council in Spring 2017. The site plans indicated various parking options and ROW
improvements for the project. Neighbors of the proposed development expressed
concerns for the lack of parking, safety issues, and difficult traffic patterns that
currently exists in this neighborhood that could be intensified by this development.
The complexity of the area between the vehicles and the bike/pedestrian use could
result in conflicts if not properly addressed.
Based on community and staff input, Council directed the Engineering Department
to conduct a study for alternate solutions for mobility in this neighborhood.
Council expressed that this study shall also address bicycle and pedestrian
connectivity to the surrounding trail arteries in the City.
Per this direction, Staff reached out to two traffic and planning design firms that
have previously completed work within the City of Aspen for interest and proposal
submittals.
Bids were received from two (2) design firms as summarized below:
Alta Planning and Design $16,320
Fox Tuttle Hernandez Transportation Group $18,000
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Alta Planning and Design was identified by staff as the lowest qualified bidder.
DISCUSSION: Alta Planning and Design has experience in similar
bike/pedestrian connectivity projects in the City of Aspen and has performed well
in previous contracts. Staff recommends that it is in the City’s best interest to
award the final mobility analysis contract to this vendor.
FINANCIAL/BUDGET IMPACTS:
Funding
Professional Services Acc. # 001.327.121105 $20,000
Expenditures
Base Bid – Alta Planning and Design $16,320
Potential Expenses (Contingency) $3,680
Public Outreach
Visual Display
Advertising
TOTAL $20,000
RECOMMENDATION: Staff recommends Council approve Resolution # 95,
Series of 2017, for the funding for the Parking and Multimodal Circulation
Analysis for W Main St and 7th St Project with Alta Planning and Design for
$20,000.
PROPOSED MOTION: “I move to approve Resolution # 95, Series of 2017”
CITY MANAGER COMMENTS:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
ATTACHEMENT A – Contract with Alta Planning and Design
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RESOLUTION # 95
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND ALTA PLANNING AND DESIGN AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
West Main Street Mobility Plan, between the City of Aspen and Alta Planning and
Design, a true and accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for West Main Street Mobility Plan, between the City of Aspen and Alta Planning
and Design, a copy of which is annexed hereto and incorporated herein, and does
hereby authorize the City Manager to execute said agreement on behalf of the City
of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 12th day of June, 2017.
Steven Skadron, Mayor
I, Linda Manning, 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, June 12th, 2017.
Linda Manning, City Clerk
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Agreement Professional Services Page 0
CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009
PROFESSIONAL SERVICES
City of Aspen Project No.: 2017-082.
AGREEMENT made as of 12th day of June, in the year 2017
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o PJ Murray
130 South Galena Street
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
Alta Planning and Design
c/o Contracts Department
711 SE Grand Avenue
Portland, OR 97214
Phone: 406-624-6117
For the Following Project:
West Main Street Mobility Plan
Exhibits appended and made a part of this Agreement:
If this Agreement requires the City to pay
an amount of money in excess of
$25,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: ___________________________
Resolution No.:___________________
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule.
Total: $16,320.00
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Agreement Professional Services Page 1
The City and Professional agree as set forth below.
1. Scope of Work. Professional shall perform in a competent and professional manner the
Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein.
2. Completion. Professional shall commence Work immediately upon receipt of a written Notice
to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
The parties anticipate that all Work pursuant to this Agreement shall be completed no later than
October 1, 2017. Upon request of the City, Professional shall submit, for the City's approval, a
schedule for the performance of Professional's services which shall be adjusted as required as the
project proceeds, and which shall include allowances for periods of time required by the City's
project engineer for review and approval of submissions and for approvals of authorities having
jurisdiction over the project. This schedule, when approved by the City, shall not, except for
reasonable cause, be exceeded by the Professional.
3. Payment. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall not
exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually
agreed to by the parties the payments made to Professional shall not initially exceed the amount set
forth above. Professional shall submit, in timely fashion, invoices for work performed. The City
shall review such invoices and, if they are considered incorrect or untimely, the City shall review the
matter with Professional within ten days from receipt of the Professional's bill.
4. Non-Assignability. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the
other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities
or obligations under this Agreement. Professional shall be and remain solely responsible to the City
for the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each
of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the
extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums
due which may be due to any sub-contractor.
5. Termination of Procurement. The sale contemplated by this Agreement may be
canceled by the City prior to acceptance by the City whenever for any reason and in its sole
discretion the City shall determine that such cancellation is in its best interests and convenience.
6. Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor, by
giving notice, in writing, addressed to the other party, specifying the effective date of the
termination. No fees shall be earned after the effective date of the termination. Upon any
termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models,
photographs, reports or other material prepared by the Professional pursuant to this Agreement shall
become the property of the City. Notwithstanding the above, Professional shall not be relieved of
any liability to the City for damages sustained by the City by virtue of any breach of this
Agreement by the Professional, and the City may withhold any payments to the Professional for the
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Agreement Professional Services Page 2
purposes of set-off until such time as the exact amount of damages due the City from the
Professional may be determined.
7. Independent Contractor Status. It is expressly acknowledged and understood by the parties
that nothing contained in this agreement shall result in, or be construed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent,
employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or
servant of the City. City is interested only in the results obtained under this contract. The manner
and means of conducting the work are under the sole control of Professional. None of the benefits
provided by City to its employees including, but not limited to, workers' compensation insurance and
unemployment insurance, are available from City to the employees, agents or servants of
Professional. Professional shall be solely and entirely responsible for its acts and for the acts of
Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and shall
assume full responsibility for payment of all federal, state and local taxes or contributions imposed
or required under unemployment insurance, social security and income tax law, with respect to
Professional and/or Professional's employees engaged in the performance of the services agreed to
herein.
8. Indemnification. Professional agrees to indemnify the City, its officers, employees, insurers,
and self-insurance pool, from and against liability, claims, and demands, on account of injury, loss,
or damage, including without limitation claims arising from bodily injury, personal injury, sickness,
disease, death, property loss or damage, or any other loss to the extent and for an amount represented
by the degree or percentage such injury, loss, or damage is caused by, , the wrongful act, omission,
error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of
the Professional, or any officer, employee, representative, or agent of the Professional or of any
subcontractor of the Professional, or which arises out of any workmen's compensation claim of any
employee of the Professional or of any employee of any subcontractor of the Professional. The
Professional agrees to investigate, handle, respond to, and to provide defense for and defend against,
any such liability, claims or demands 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 Profes-
sional for the portion of the judgment attributable to such act, omission, or other fault of the City, its
officers, or employees.
9. Professional's Insurance.
(a) Professional 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 Professional pursuant to Section 8 above. Such insurance shall be in addition
to any other insurance requirements imposed by this contract or by law. The Professional
shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant
to Section 8 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.
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Agreement Professional Services Page 3
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City.
All coverages shall be continuously maintained to cover all liability, claims, demands, and
other obligations assumed by the Professional pursuant to Section 8 above. In the case of any
claims-made policy, the necessary retroactive dates and extended reporting periods shall be
procured to maintain such continuous coverage.
(i) Workers’ 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
Workers' Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE
MILLION DOLLARS ($1,000,000.00) aggregate. The 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 contractors, products, and completed operations. The policy shall
contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS
($1,000,000.00) aggregate with respect to each Professional's owned, hired and non-
owned vehicles assigned to or used in performance of the Scope of Work. The policy
shall contain a severability of interests provision. If the Professional has no owned
automobiles, the requirements of this Section shall be met by each employee of the
Professional providing services to the City under this contract.
(iv) Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000)
aggregate.
(c) The policy or policies required above, except for Workers Compensation and
Professional Liability, shall be endorsed to include the City and the City's officers and
employees as additional insureds. Every policy required above shall be primary insurance,
and any insurance carried by the City, its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Professional. No additional insured endorsement to the policy required above
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shall contain any exclusion for bodily injury or property damage arising from completed
operations. The Professional shall be solely responsible for any deductible losses under any
policy required above.
(d) The certificate of insurance provided to the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and
minimum limits are in full force and effect, and shall be reviewed and approved by the City
prior to commencement of the contract. No other form of certificate shall be used. The
certificate shall identify this contract and shall provide that if any of the above described
policies are canceled before their expiration date, notice will be delivered in accordance with
the policy provisions.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of
contract upon which City may immediately terminate this contract, or at its discretion City
may procure or renew any such policy or any extended reporting period thereto and may pay
any and all premiums in connection therewith, and all monies so paid by City shall be repaid
by Professional to City upon demand, or City may offset the cost of the premiums against
monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently
$350,000.00 per person and $990,000 per occurrence) 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.
10. City's Insurance. The parties hereto understand that the City is a member of the Colorado
Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper-
ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management Department and are available to Professional for inspection during normal business
hours. City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Professional reasonable notice of any changes in its membership or
participation in CIRSA.
11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
12. Notice. Any written notices as called for herein may be hand delivered or mailed by
certified mail return receipt requested to the respective persons and/or addresses listed above.
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13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status,
affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or
religion shall be made in the employment of persons to perform services under this contract.
Professional agrees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant,
or condition to be performed by Professional to which the same may apply and, until complete
performance by Professional of said term, covenant or condition, the City shall be entitled to invoke
any remedy available to it under this Agreement or by law despite any such forbearance or
indulgence.
15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto
and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be binding upon the City unless
duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence)
following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a
duly authorized official in his absence) to execute the same.
16. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101.
(a) Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
(b) Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
“Basic Pilot Program” means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public
Law 156, 108th Congress, as amended, that is administered by the United States
Department of Homeland Security.
“Public Contract for Services” means this Agreement.
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“Services” means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than
reports that are merely incidental to the required performance.
(c) By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who
are newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not illegal aliens.
(d) Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails
to confirm to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months thereafter, until
Professional is accepted or the public contract for services has been completed,
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien, Professional shall:
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(1) Notify such subcontractor and the City of Aspen within three days
that Professional has actual knowledge that the subcontractor has newly
employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within three
days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that
the subcontractor has not knowingly employed or contracted with an
illegal alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the City of Aspen arising out of Professional’s violation of Subsection
8-17.5-102, C.R.S.
(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal law,
(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(a) Professional warrants that no person or selling agency has been employed or
retained to solicit or secure this Contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees or
bona fide established commercial or selling agencies maintained by the Professional for
the purpose of securing business.
(b) Professional agrees not to give any 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 advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
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ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(c) Professional represents that no official, officer, employee or representative of the
City during the term of this Agreement has or one (1) year thereafter shall have any
interest, direct or indirect, in this Agreement or the proceeds thereof, except those that
may have been disclosed at the time City Council approved the execution of this
Agreement.
(d) In addition to other remedies it may have for breach of the prohibitions against
contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right
to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4. Recover such value from the offending parties.
17. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
18. General Terms.
(a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the
parties.
(b) If any of the provisions of this Agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
(d) This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect.
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19. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on the
date first written above.
CITY OF ASPEN, COLORADO: PROFESSIONAL:
________________________________ ______________________________ [Signature] [Signature]
By: _____________________________ By: __Joe Gilpin __________________ [Name] [Name]
Title: ____________________________ Title: _Vice President, as duly authorized
Date: ___________________ Date: _6/5/2017__________________
Approved as to form:
_______________________________
City Attorney’s Office
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Exhibit A Scope of Work and Professional Services Agreement
Scope of Work
Task 1. Kick-off Meeting
Alta will attend a phone or web meeting with City of Aspen Engineering staff following issue of the project
notice to proceed. This call will focus on confirming the scope of work and establishing expectations, critical
dates and milestones, etc. This meeting will also confirm the options that will be considered from a layout
perspective in Task 3.
Task 2. Existing Conditions
Alta currently has imported GIS of edge of pavement and curb lines for the entire Aspen street network. We
will prepare an exhibit using this that conveys the existing conditions including number and layout of
existing on-street parking on Bleeker, 8th and Main frontages surrounding the new affordable housing site.
This exhibit will also identify zones of no parking, street width and other key features.
Task 3. Street Layout Configurations
Alta will create 10 percent CAD designs for two scenarios for these three block frontages. Based on initial
discussions with City staff, we anticipate these to be:
1. Conversion of street to one-way operation clockwise from Main to Bleeker. This option will reduce clear
width requirements that will increase opportunities for additional on-street parking on all three blocks. This
option will note opportunities to improve sidewalk and bicycle connections from Hopkins Ave to the Hallam
St Bridge.
2. Maintain two-way operations but look for opportunities to increase parking supply. This option will also
note opportunities to improve sidewalk and bicycle connections from Hopkins Ave to the Hallam St Bridge.
Each option will include available opportunities for a pedestrian and bicycle connection on 8th and W Main
streets to link to the existing pedestrian trail at 8th and Bleeker to the Hopkins Ave Bike Boulevard. Plans will
be created at 40 scale and will include one block face per sheet. Up to eight (8) cross-sections will be created
based on coordination with City staff to illustrate potential future conditions.
Task 4. Weekday Parking Data Collection
Chloe Ward will visit Aspen for a two-day trip to collect weekday parking data on the three blocks.
Observations will be conducted on a Tuesday/Wednesday or a Wednesday/Thursday in May at several
predetermined times. One observation will be conducted in the project area during the following four (4)
intervals:
• 7am before work
• Just before lunch at 11am
• In early afternoon at 3:30pm
• In the evening at 7pm after most residents are home.
Alta will identify the proportion of resident and non-resident vehicles parked by identifying parking permit s,
and will identify the total number of vehicles during each observation. This data will allow Alta to identify
share of resident vs. non-resident parking, and occupancy. Based on these observations, Alta will determine
whether there is evidence that
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Parking Study and Multimodal Circulation Analysis | 5 Alta Planning + Design
vehicles are adhering to the two-hour time limit on parking. Increased enforcement of the existing parking
regulations could be a conclusion of the study that would create additional opportunity for increased resident
parking.
If the city desires, Alta can share the data collection format and methodology where the City can collect
additional days of data.
Task 4. Alternate – Weekday Parking with Occupancy Analysis
Alta will increase the frequency of observations to hourly to attempt to gain an understanding of parking
duration and turnover. This requires significantly more observation periods.
Task 5. Weekend Parking Data Collection
Using the same times of day, Alta will collect observations starting on a selected Friday afternoon through
Saturday afternoon to determine occupancy profiles of weekend conditions. This task would require a second
trip, or a longer trip associated with Task 4.
Task 5. Alternate – Weekend Parking with Occupancy Analysis
As in Task 4(A), Alta will increase the frequency of weekend observations to hourly to attempt to gain an
understanding of parking duration and turnover. This requires significantly more observation periods.
Task 6. Memo
Alta will prepare a brief memo that summarizes the results of the parking analysis in Tasks 4 and 5 (if
desired). We anticipate this memo to be as brief as possible to convey the needed information. Our raw data
will be provided as an appendix to the memo.
Project Schedule
Alta has the capacity to quickly perform the required concept design and parking analysis and produce a
memo within three months of project notice to proceed. A more accurate schedule will be influenced by
meeting scheduling and decision making by both the City of Aspen. We suggest that the concept design and
alternatives be initiated first with parking analysis tasks occurring later in the project to maximize the
impacts of the summer tourist season.
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Exhibit B Costs Professional Services Agreement
Project Budget
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MEMORANDUM
TO: Mayor and City Council
From: Linda Manning, City Clerk
RE: Board Appointment
Date: June 8, 2017
Meeting Date: June 12, 2017
______________________________________________________________________________
By adopting the consent calendar, Council is making the following board appointments:
Board of Adjustment: Ashley Fedderson Regular Member
James P. Farrey Regular Member
Michael J. Hopson Regular Member
Local License Authority Amos Underwood Regular Member
Bryan Semel Regular Member Effective- August 1
Open Space Advisory Board Richard Nedlin City Regular Member
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CITIZEN COMMENTS ............................................................................................................................... 2
COUNCILMEMBERS COMMENTS .......................................................................................................... 2
CITY MANAGER COMMENTS ................................................................................................................ 3
BOARD REPORTS ...................................................................................................................................... 3
CONSENT CALENDAR ............................................................................................................................. 3
Resolution #68, Series of 2017 – Car Share Vehicle Replacement ...................................................... 4
Resolution #73, Series of 2017 – Agreement for Rubey Park Security Services ................................. 4
Resolution #79, Series of 2017 – Roofing System for Truscott Place Phase I ..................................... 4
Resolution #69, Series of 2017 – Concrete Replacement and Pedestrian Improvement Project .......... 4
Resolution #64, Series of 2017 – Parks Fleet – Toro maintenance vehicles and aerator ...................... 4
Resolution #75, Series of 2017 – Parks Fleet – Ventrac Mower/Snowplow ........................................ 4
Resolution #77, Series of 2017 – Wagner Park Restoration Contract .................................................. 4
Resolution #84, Series of 2017 – Construction Contract Burlingame Single Family Homes .............. 4
Resolution #78, Series of 2017 – Purchase of EV Charger .................................................................. 4
Resolution #70, Series of 2017 – Aspen Country Inn, Change Order #22 for Common Area Flooring
Repairs – Resolution #71 – Change Order #23, for Site Work ..................................................................... 4
Resolution #72, Series of 2017 – Red Brick Building, Weathersure INC. Construction Contracts,
Round 2 ......................................................................................................................................................... 4
Resolution #51, #52, #53, #54, and #55, Series of 2017 – As-Needed Service Contracts – Round 2 .. 4
Resolution #81, Series of 2017 – OfficeScapes Change Order contract addition ................................. 4
Resolution #82, Series of 2017 – PNCI Construction Contract Mill Street .......................................... 4
Resolution #85, Series of 2017 – Golf Turf Sprayer purchase ............................................................. 4
NOTICE OF CALL UP ................................................................................................................................ 4
ORDINANCE #12, SERIES OF 2017 . –104 S. Galena Street and 533 E. Main Street, St. Mary’s Catholic
Church Growth Management and Vested Rights.......................................................................................... 4
ORDINANCE #13, SERIES OF 2017 - APCHA Supplemental Budget .................................................... 5
ORDINANCE #14, SERIES OF 2017 – Spring Supplemental Budget ........................................................ 5
ORDINANCE #15, SERIES OF 2017 -ACI Supplemental Budget ............................................................. 6
ORDINANCE #34, SERIES OF 2016 – Mountain View Planes ................................................................. 6
ORDINANCE #9, SERIES OF 2017 – 215 N. Garmisch Street, 630 W Main Street, 1101 E. Cooper
Avenue and Aspen Pedestrian Mall Historic Designation ............................................................................ 6
ORDINANCE #11, SERIES OF 2017 – 110 E. Hallam Street Historic Designation .................................. 8
RESOLUTION #83, SERIES OF 2017 – Smuggler Hunter Master Plan Adoption .................................... 9
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Regular Meeting Aspen City Council April 24, 2017
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At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Myrin, Frisch,
Daily and Mullins present.
CITIZEN COMMENTS
1. Tom Marshall talked about raising the parking fees and keeping the locals from coming
downtown. The Glenwood bridge construction will impact this as well.
2. Toni Kronberg gave a good job to Ski Co for their closing weekend. She also said Galena Plaza
is stunningly beautiful right now.
COUNCILMEMBERS COMMENTS
Councilman Myrin requested Council to rescind the resolution they passed for the dams. He moved to
rescind Resolution #141, Series of 2016. Personally, he stated he no longer supports Councils position.
Two things happened to take formal action. Staff wrote letters stating Council is unanimous in supporting
their direction. He no longer supports that. Alan Harvey asked him to reconsider his October vote. He
moved today to rescind since the reconsideration time has passed. Aspen, as a leader, should agree to
never dam wilderness areas. Resolution 141 specifically states, legal and reliable water supply, can and
will and develop all necessary water rights. This conflicts with our water management values. The 2016
Aspen water supply study shows we do not need dams. Aspen failed to get the dams off the books.
Public tax dollars are being spent on this. We should be trying to preserve not develop these water rights.
Jim True, city attorney, said you made a motion, if it gets a second you can proceed. There is a motion on
the table. It requires a second for further discussion.
Councilman Frisch said if I want to make some comments can I without making a second. Mr. True said
to have a substantive debate there should be a second. It is up to you as to what kind of discussion you
have.
Councilman Frisch said that is a fair point to raise with everything going on. I would rather set aside
some time to have that discussion. I believe in the long term water rights. I’m happy to have the dialogue
of the pros and cons. I don’t see myself changing my mind. He is happy to have a conversation at a later
date.
Councilman Daily said he thinks this ought to be a formal agenda item at a later date. It is certainly an
issue that deserve more discussion, let’s have it.
Councilwoman Mullins said she won’t be seconding it. It is a short sided discussion.
Mayor Skadron said he concurs with Council. Thanks for bringing it up. I mean no disrespect. This has
become a political issue. We are one week out from a campaign. I will not be supporting it at all.
Without knowing more about viable storage options. This is not about building dams but simply a filing
to preserve drinking water. I hear no second.
Councilman Myrin then proposed a motion that Council direct staff to amend the water court filing to
eliminate the wilderness dams and investigate non-development solutions to investigate Castle and
Maroon creek. The studies have potential 231 acre feet in 2064 and seems to be aggressive. proposed
dam sizes are 231 acre feet, with 9,000 acre feet for one and 4,500 acre feet for another. The combination
would be 60 years’ worth of water. This is so far out of reality and is why I’m proposing this resolution.
Councilman Frisch said on June 12th the first half of the meeting is the five of us and the second half is
some combination of the five of us. I suggest we have this conversation June 13th. That makes the most
sense from a timing standpoint.
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Councilwoman Mullins said one of the good things of being on Council is we have the opportunity to be
involved in other things. She said she went to the uphill festival at Buttermilk and it was real successful.
She presented a session about the mall at the Urban Land Institute conference. She attended a mental
health and substance abuse strategic planning meeting that was very informative.
Mayor Skadron said the election is coming up on May 2nd. There will be one polling place in this room.
CITY MANAGER COMMENTS
Steve Barwick said starting tomorrow the city is trying out a piece of equipment to clean the sidewalks.
We will also be doing potholing for the mall project. This will run through the week of the 15th.
BOARD REPORTS
Mayor Skadron said at the RFTA meeting the big issue is the access control plan and where the Rio
Grande trail can be accessed. I want to protect the original intent of the plan and find some common
ground.
CONSENT CALENDAR
Reso 68 - Car Share Vehicle Replacement
Councilwoman Mullins asked if we are working towards an all electric fleet.
John Krueger, transportation, replied one with the next round of grant money to see how it goes. He is
not sure if EV will be a good application with the range. Councilman Myrin said the pick up will not go
away. Mr. Krueger replied no, it stays.
Reso 73 – Agreement for Rubey Park Security Services
Councilwoman Mullins said we are increasing the security services and want to understand the extent of
the problem. Mr. Krueger said it is increasing during the winter and evenings. During the 1am and 2am
shuffle a lot of strange things go on. Security helps keep things in order, notify police and stop
vandalism. He does not see that changing soon. Councilwoman Mullins asked where is the money
coming from. Mr. Krueger replied the transportation budget. Mayor Skadron asked is it worse since
Rubey Park was redone. Mr. Krueger replied yes, in a way. There are homeless issues, it is warm and
cozy. It seemed to ramp up right after operation of the new facility.
Reso 79 – Roofing Systems for Truscott Place Phase I
Councilman Frisch said 20 years is not that long for a roof to need this level of repair. If I’m right what
happened. Pat Hinch, housing, said there is no warranty at this stage. We are trying to reduce the liability
of ice buildup at the edges. This is metal flashing work and edges about a foot back. Councilman Frisch
asked was this a design issue. Mr. Hinch replied it was a bit of a do over. Originally we though it was a
gutter issue.
Reso 84 – Construction Contract Burlingame Single Family Homes
Councilman Myrin asked about the demand for these. Chris Everson, asset, said since the new proposal
from PNCI, all reservation holders wish to maintain their reservations. We are selling the homes at an
unsubsidized price for the qualified buyers. Ord 22-2011 required these homes. Councilman Myrin said
it all sounds good.
Councilman Frisch said he has an issue with the word unsubsidized. He thinks it should be at cost. It is
not right to say unsubsidized. From a financial standpoint, we are recouping it.
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· Resolution #68, Series of 2017 – Car Share Vehicle Replacement
· Resolution #73, Series of 2017 – Agreement for Rubey Park Security Services
· Resolution #79, Series of 2017 – Roofing System for Truscott Place Phase I
· Resolution #69, Series of 2017 – Concrete Replacement and Pedestrian Improvement Project
· Resolution #64, Series of 2017 – Parks Fleet – Toro maintenance vehicles and aerator
· Resolution #75, Series of 2017 – Parks Fleet – Ventrac Mower/Snowplow
· Resolution #77, Series of 2017 – Wagner Park Restoration Contract
· Resolution #84, Series of 2017 – Construction Contract Burlingame Single Family Homes
· Resolution #78, Series of 2017 – Purchase of EV Charger
· Resolution #70, Series of 2017 – Aspen Country Inn, Change Order #22 for Common Area
Flooring Repairs – Resolution #71 – Change Order #23, for Site Work
· Resolution #72, Series of 2017 – Red Brick Building, Weathersure INC. Construction Contracts,
Round 2
· Resolution #51, #52, #53, #54, and #55, Series of 2017 – As-Needed Service Contracts – Round
2
· Resolution #81, Series of 2017 – OfficeScapes Change Order contract addition
· Resolution #82, Series of 2017 – PNCI Construction Contract Mill Street
· Resolution #85, Series of 2017 – Golf Turf Sprayer purchase
Councilwoman Mullins moved to adopt the Consent Calendar; seconded by Councilman Daily. All in
favor, motion carried.
NOTICE OF CALL UP
APCHA board Resolution 1
Mayor Skadron said he supports calling this up, Council agrees. Councilman Daily moved to call up
APCHA Resolution 1, Series of 2017; seconded by Councilman Myrin. All in favor, motion carried.
ORDINANCE #12, SERIES OF 2017 –104 S. Galena Street and 533 E. Main Street, St. Mary’s
Catholic Church Growth Management and Vested Rights
Amy Simon, community development, told the Council this is mostly for the subgrade addition. Council
remanded the approval back to HPC for further discussion. It was modified per council direction. It still
needs HPC final approval and GM allotments. Council may determine the appropriate mitigation. We
recommend no mitigation now and an audit in two years. There are 3.5 FTE employees now. There is a
substantial volunteer force. What is on the table is an extended period of vested rights. The applicant is
concerned it will not be enough time. There is an application in for a building permit for life safety
improvements. They are asking for 10 years of vested rights. Staff is recommending approval.
Councilwoman Mullins asked when is HPC looking at this. Ms. Simon replied they can’t submit until
after this review but will need to submit before June.
Councilman Frisch said he suggested a few years ago for a standard discount for essential public facility.
He said he would want St. Mary’s to be on that standard. As far as the vested rights, he is not sure if it
shouldn’t be closer to 5 than 10. 10 years is a long time. On the affordable housing, he does not want to
mix up the two issues of we aren’t going to have more people and we are an essential public facility. He
has no problem with an audit that a private developer would have.
Councilman Myrin said for second reading he would like a list of what the audits found as to what to
compare this to.
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Regular Meeting Aspen City Council April 24, 2017
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Councilman Daily said he appreciate HPCs support for the 2 year audit. It is a fair approach. Additional
time to raise the money is needed. He agrees with Adam that five years is appropriate. They can extend
later if there is good cause for it.
Mayor Skadron said on the vested rights he would like a comparison.
Councilman Myrin moved to read Ordinance #12, Series of 2017; seconded by Councilman Frisch. All in
favor, motion carried.
ORDINANCE NO 12
(SERIES OF 2017)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING
GROWTH MANAGEMENT AND VESTED RIGHTS FOR AN ESSENTIAL PUBLIC FACILITY AT
104 S. GALENA STREET AND 533 E. MAIN STREET, ST. MARY’S CATHOLIC CHURCH, LOTS
A-1, BLOCK 93, CITY AND TOWNSITE OF ASPEN, COLORADO.
Councilman Frisch moved to adopt Ordinance #12, Series of 2017 on first reading; seconded by
Councilman Daily. Roll call vote. Councilmembers Frisch, yes; Mullins, yes; Daily, yes, Myrin, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #13, SERIES OF 2017 - APCHA Supplemental Budget
Pete Strecker, finance, said the total request is $125,300. There are three new requests. $58,000 for a new
compliance and enforcement position. $30,000 for database and data cleanup. $20,000 for landuse
review work to be fully reimbursed by the developer. There is also $17,000 in carryforward for
workstations.
Councilman Frisch moved to read Ordinance #13, Series of 2017; seconded by Councilwoman Mullins.
All in favor, motion carried.
ORDINANCE NO. 13
(SERIES OF 2017)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE HOUSING ADMINISTRATION
FUND OF $125,300.
Councilman Daily moved to adopt Ordinance #13, Series of 2017 on first reading; seconded by
Councilman Myrin. Roll call vote. Councilmembers Myrin, yes; Frisch, yes, Mullins, yes; Mayor
Skadron, yes. Motion carried.
ORDINANCE #14, SERIES OF 2017 – Spring Supplemental Budget
Mr. Strecker stated the total is 38.2 million dollars. 30 million is re-adoption of capital to carryover from
2016 to 2017 and a requirement of state law. 14 million of it is for the city offices project. 1.9 million is
for projects previously approved by council. 3.5 million is re-appropriations of savings, things like the
Citizens academy, wheeler, ERP. There are 830,000 in new requests; 56,000 for community development
– 38,000 for the sign code updates, 18,000 for the lift 1 A study. 35,000 for the police department
dispatch center, 25,000 for environmental health to utilize bag fee collections, 340,000 for the Red Brick
Roof, 25,000 for the consultant for the permit system for com dev, 10,000 for a copier for mill street,
139,000 for water utility for long term water plan.
Councilman Daily asked to elaborate on the long term water use plan. Tyler Christoff, utilities, stated
resolution 141, planning for future supply and demand.
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Regular Meeting Aspen City Council April 24, 2017
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Councilman Daily moved to read Ordinance #14, Series of 2017; seconded by Councilman Frisch. All in
favor, motion carried.
ORDINANCE NO. 14
(SERIES OF 2017)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET MANAGEMENT PLAN
FUND EXPENDITURES OF $19,698,908, AN INCREASE IN THE GENERAL FUND OF $3,006,560,
AN INCREASE IN THE PARKS AND OPEN SPACE FUND OF $642,731, AND INCREASE IN THE
WHEELER OPERA HOUSE FUND OF $313,020, AN INCREASE IN THE CITY TOURISM
PROMOTION FUND OF $216,514, AN INCREASE IN THE TRANSPORTATION FUND OF
$1,889,154, AN INCREASE IN THE HOUSING DEVELOPMENT FUND OF $6,806,724, AN
INCREASE IN THE KIDS FIRST FUND OF $100,090, AN INCREASE IN THE STORMWATER
FUND OF $1,001,527, AN INCREASE IN THE WATER UTILITY FUND OF $2,138,369, AN
INCREASE IN THE ELECTRIC UTILITY FUND OF $791,541, AN INCREASE IN THE PARKING
FUND OF $258,576, AN INCREASE IN THE GOLF COURSE FUND OF $499,252, AN INCREASE
IN THE TRUSCOTT HOUSING FUND OF $134,900, AN INCREASE IN THE MAROLT HOUSING
FUND OF $8,450, A DECREASE IN THE EMPLOYEE HEALTH INSURANCE FUND OF $15,250,
AN INCREASE IN THE EMPLOYEE HOUSING FUND OF $204,120, AN INCREASE IN THE
INFORMATION TECHNOLOGY FUND OF $564,700.
Councilman Myrin moved to adopt Ordinance #14, Series of 2017 on first reading; seconded by
Councilman Frisch. Roll call vote. Councilmembers Mullins, yes; Myrin, yes; Daily, yes; Frisch, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #15, SERIES OF 2017 -ACI Supplemental Budget
Mr. Strecker stated this is 4.5 million to re-appropriate the unspent balance of the renovation balance for
the Aspen Country Inn.
Councilman Daily moved to read Ordinance #15, Series of 2017; seconded by Councilwoman Mullins.
All in favor, motion carried.
ORDINANCE NO. 15
(SERIES OF 2017)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASPEN COUNTRY INN
AFFORDABLE ONE HOUSING FUND OF $4,250,299.
Councilman Frisch moved to adopt Ordinance #15, Series of 2017 on first reading; seconded by
Councilman Daily. Roll call vote. Councilmembers Myrin, yes; Daily, yes; Frisch, yes; Mullins, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #34, SERIES OF 2016 – Mountain View Planes
Jessica Garrow, community development, stated staff recommends continuation to May 22 to give time to
work with interested parties.
Councilman Myrin moved to continue Ordinance #34, Series of 2016 to May 22, 2017; seconded by
Councilman Daily. All in favor, motion carried.
ORDINANCE #9, SERIES OF 2017 – 215 N. Garmisch Street, 630 W Main Street, 1101 E. Cooper
Avenue and Aspen Pedestrian Mall Historic Designation
Ms. Simon said the four properties include the Yellow Brick, Former Mountain Rescue, Anderson Parcel
and the Malls. There has been a historic preservation program for over 40 years. At the beginning, it was
only focused on Victorian sites. Aspenmodern is a voluntary program. 13 properties have been
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designated to date. To be landmarked a property must meet certain criteria. Each of these properties met
at least 2 of the 4.
The Yellow Brick was built as an elementary school. It was a modern structure built in 1960. Mountain
Rescue was built in 1965 as a kit log building. Anderson Park contains a 1949 log cabin. The pedestrian
mall was a groundbreaking change to become an urban park. It was one of the earliest in the state and
few remaining in the country. Staff and HPC are recommending approval. There was an open house this
afternoon.
Ron Sladek of Tatanka Historical Associates stated the Yellow Brick was Built in 1960. Mountain Rescue
Aspen was dedicated March 6th, 1966. Anderson Park contains the Peter’s cabin. Louis and Mary Peters
owned the cabin. Louis built the cabin in 1949. The property was sold to William and Hilder Anderson.
The pedestrian malls are incredibly intact and have not been rebuilt.
Ms. Simon said there are agreements with each of the properties. For the Yellow Brick, Kids First is the
main occupant. They ask that any future addition go where the basketball court is currently located. HPC
could not deny an addition on that spot. HPC could never have purview over the interior.
For Mountain Rescue, HPC could have no future review over the interior.
For Anderson park, parks continue to work on the master planning and possible addition of the basement.
There are small Victorian cabins that were moved to the site. They will be preserve but would like the
possibility to move them in the future within the site.
The malls, what HPC can and cannot weigh in on. Landscape and maintenance, HPC cannot weigh in on.
Councilwoman Mullins said for the Yellow Brick, historically what has been where the basketball court
is. Ms. Simon replied a play yard with a very tall fence. Councilwoman Mullins said the mall had a few
streets that were not developed, which ones. Ron said one on Cooper and one on Galena. Councilwoman
Mullins said HPC will not have review on basic maintenance but the final plan will include landscape.
Ms. Simon said at the end of the study the plan will include street furnishings and artwork.
Councilman Myrin said the Yellow Brick restrictions, HPC not having the ability to deny development in
the future. Those concern me that we would tie the hands of a future HPC. Ms. Simon said any private
property owner can ask for designation with conditions. We have had the same dialogue with
representatives of these properties with how it might affect future plans of these properties. They are
active buildings with needs of the community. Councilman Myrin said we put this in the ordinance and
future councils can remove it. Mr. True said Council can amend this ordinance. Councilman Myrin said
as long as Council can change it as it goes.
Councilman Frisch said I think what we are trying to do is send a notice of intention of what we like. I’m
with HPC and P&Z as well. Councilman Myrin said I’m not.
Mayor Skadron opened the public comment.
1. Toni Kronberg said she has concerns about the designation of the yellow brick.
2. Jackie Kasabach said the property is owned by the city and the children’s program is there by the
grace of the city. If the subject came up there would be public hearings. Leave it as is.
3. Angie Callin said if I were in this position I would not want to be in a position that would
behoove me from expanding to benefit my needs. Keep the language as is.
Ms. Simon added a letter from Nora Berko.
Mayor Skadron closed the public comment.
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Councilwoman Mullins said to Angie’s comments. What the condition is to the Yellow Brick is leaving
open the possibility for expansion. We tend to focus on the mining history and Victorian era. This era is
just as important or more so. She said she served on the taskforce for 18 months. Some wanted it
involuntary. This has been long overdue. It is great we are finally doing it. It should be passed as is.
Councilman Frisch said overall it is great. We are walking the walk we talked about. He is still happy to
have some discussion on the Yellow Brick issue.
Councilman Myrin said he would approve Ordinance 9 but would strike the last paragraph on page 2, the
basketball court. He does not think the neighbors or anyone in the community realizes we are planning a
building in that particular place. He does not think there is anything in this that ties anyone’s hands on
future expansion.
Councilman Daily said he supports the proposal as written. He thinks there is still significant flexibility
for the city to turn down any development on the site. He is ready to move ahead with it.
Councilman Frisch said he thinks we should strike the clause.
Councilwoman Mullins said it is unfortunate this has gotten so muddied. This clause is a negotiation. It
is a guarantee. Councilman Frisch said I think we need to be careful about the roles here. Kids First is a
tenant. City Council is the owner.
Mayor Skadron said the language is too aggressive and leaves me unsettled. I can see where back in the
day I would be stuck on this. Mr. True said it is limiting HPC. If you are concerned about the extent of
the HPC we can work on the wording.
Councilman Myrin said I would pass this tonight without that. Mayor Skadron said better wording would
be the ability of HPC to deny a community necessity.
Councilwoman Mullins said the goal is to get the properties designated and protected. She will support
striking the clause.
Councilman Myrin moved to adopt Ordinance #9, Series of 2017 with amendments; seconded by
Councilman Frisch. Roll call vote. Councilmembers Mullins, yes; Daily, yes; Frisch, yes; Myrin, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #11, SERIES OF 2017 – 110 E. Hallam Street Historic Designation
Councilman Myrin received notice and recused himself.
Ms. Simon stated this property meets 2 of the 4 criteria and is the oldest of the properties at 76 years old.
It was the first modern school to be built. There have been several additions over the years. It meets the
designation and integrity criteria.
Ron gave a history of the property.
Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public
comment.
Councilwoman Mullins move to approve the ordinance as written. It was a mistake to take the language
out of the first one. Second by Councilman Daily. Councilman Frisch said he does not like this being
perceived as the first step in the land use application. I have the same love for Kids First as I do the Red
Brick. I want to be consistent so I think we should strike it. I don’t like the vibe it sends. Mayor Skadron
said he agrees with Adam on this. Councilman Daily said he does not want to deadlock this. Mayor
Skadron said we should leave it up to the good judgement of future council members. Councilman Daily
said he is good with that.
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Ms. Callin said she wants to clarify the intent. She would rather see it say the only location is the parking
lot. In 15 years, she does not want to see development in the lawn. Mr. True said that creates a different
restriction that I don’t know if you want to go there. Councilwoman Mullins said she thinks it is
unnecessary and the clause has been misrepresented and misunderstood. The goal is to preserve the
properties and it doesn’t preclude an addition.
Councilwoman Mullins withdraws her motion. Councilman Daily moves to strike the 1st paragraph;
seconded by Councilman Frisch.
Councilman Myrin moved to adopt Ordinance #11, Series of 2017 with amendments; seconded by
Councilman Daily. Roll call vote. Councilmembers Frisch, yes; Daily, yes; Mullins, yes; Mayor
Skadron, yes. Motion carried.
RESOLUTION #83, SERIES OF 2017 – Smuggler Hunter Master Plan Adoption
April Long, engineering, stated Council saw this at the work session in March. This will formally adopt
the drainage plan as a guiding document.
Councilman Daily said he likes the guiding document concept.
Councilman Frisch said there has been a lot of great work and good discussion prior. Thanks for the
work.
Mayor Skadron said this is really good work and long overdue. It addresses several things, public safety,
flooding, costs and benefits.
Ms. Long said there are capital projects mentioned in the plan that we will be coming back throughout the
budget season to address.
Councilman Frisch moved to adopt Resolution #83, Series of 2017; seconded by Councilwoman Mullins.
All in favor, motion carried.
Councilman Daily moved to adjourn at 7:53 pm.; seconded by Councilman Frisch. All in favor, motion
carried.
Linda Manning
City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: CJ Oliver
Jim True
DATE OF MEMO: May 22nd, 2017
MEETING DATE: June 12th, 2017
RE: Tobacco 21 Initiative
REQUEST OF COUNCIL: Staff is requesting that council consider Ordinance #17, series
2017 that would raise the legal age to purchase tobacco products in Aspen from 18 to 21. The
ordinance would also create a local tobacco sales license.
PREVIOUS COUNCIL ACTION: During a work session on April 17th, council directed staff
to work with the Preventing Tobacco Addiction Foundation to prepare an ordinance for
consideration that would raise the legal age to purchase tobacco products from 18 to 21 years of
age and create a local tobacco sales license for the City of Aspen.
Ordinance 17 passed on first reading at the regular council meeting on May 8th , 2017.
DISCUSSION: Discussion on this topic is provided in depth by a memo from Dr. Kimberly
Levin, Medical Officer for the Pitkin County Board of Health, from the 4/17/17 work session
with City Council. (Attachment A)
In short, the intent of this proposed ordinance is to make it more difficult for those, age 18-20, to
purchase and use tobacco products. Tobacco use rates among this age group have seen a
surprising uptick since 2014 creating a significant public health concern as outlined in Dr.
Levin’s memo.
Per direction from City Council, language related to the use of undercover decoys for
enforcement purposes has been removed from the updated ordinance. Additionally, cigarette
sales have been included in the local tobacco sales license section of the proposed ordinance in
accordance with Council’s direction at the April 17th work session.
FINANCIAL/BUDGET IMPACTS: If the City of Aspen decides to create a local tobacco
sales license that includes cigarettes the City would forego state tobacco sales tax revenues of
approximately $75,000 per year. Over the past five years the amount ranged from $74,520 to
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$77,926. If the City excluded cigarettes from the local licensing requirements it would retain the
state tobacco sales tax dollars and the local license would cover all forms of tobacco other than
cigarettes. In addition, there will be staff costs of approximately $3,000 to administer the
program for activities including outreach, vendor education, twice per year inspections of
facilities and other activities related to initial rollout and ongoing program administration. These
activities can be completed with existing EHS Department staff. The local license fees are
designed to cover the direct costs to the department but they do not cover the revenue lost by
forgoing the state tobacco tax revenues.
RECOMMENDED ACTION: Staff recommend that Council pass Ordinance # 17, Series
2017, raising the legal age to purchase tobacco products to 21 years and creating a local tobacco
sales license for the City of Aspen on first reading.
ALTERNATIVES: Council could also consider passing Ordinance #17, Series 2017 while
excluding cigarettes in the local tobacco sales license in order to retain the revenue provided by
state tobacco tax.
PROPOSED MOTION: I move to approve Ordinance # 17, Series 2017 which raises the legal
age to purchase tobacco products from 18 to 21 years of age and also create a local tobacco sales
license for the City of Aspen.
CITY MANAGER COMMENTS:
ATTACHMENTS:
A- Memo from Dr. Kimberly Levin
B- T21 fact sheet
C- Public Comment
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ORDINANCE NO. 17
(Series 2017)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH
AND QUALITY OF ENVIRONMENT - TO ADD A NEW CHAPTER 13.25 ENTITLED:
LICENSING OF TOBACCO RETAILERS.
WHEREAS, Smoking rates in the U.S. have declined substantially since the Surgeon
General’s 1964 report, from 42 percent to now about 18 percent; however, it remains one of the
biggest public health problems in the United States as almost 500,000 Americans still die
prematurely each year from diseases related to cigarette smoking. This makes up 85% of deaths
from lung cancer. In Colorado, like most other states, it is the number one cause of preventable
death, and accounts for 5,100 deaths a year; and
WHEREAS, 90% of adult smokers started smoking before the age of 18 and each day
more than 3,000 adolescents in the U.S. try their first cigarette; and
WHEREAS, Since 2014, after decades of effective anti-smoking campaigns and
decreasing smoking rates in the U.S., there has been a surprising upturn in youth tobacco use;
and
WHEREAS, over 225 U.S. localities and the states of California and Hawaii have
enacted into law regulations prohibiting the sale of tobacco products to individuals under the age
of 21 and research has shown such regulations are effective in decreasing high school tobacco
use by up to 50%; and
WHEREAS, Research has shown that teens purchase cigarettes from their peers and that
90% of the “social sources” (friends and family) of tobacco for the 12-18 year olds are 18-21
year olds. It has also been shown that youth typically do not make the effort to travel to
neighboring localities if the age has increased to 21 in their city; and
WHEREAS, the City Council finds that this ordinance furthers and is necessary for the
promotion of the public health, safety, and welfare.
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
Section 1.
That Title 13 – Health and Quality of Environment - of the Municipal Code of the City of
Aspen, Colorado, is hereby amended by the addition of a new chapter 13.25 – Licensing of
Tobacco Retailers, which chapter shall read as follows:
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Chapter 13.25
LICENSING OF TOBACCO RETAILERS
13.25.010 Incorporation of general licensing provisions.
The provisions of Chapter 14.04 City of Aspen Municipal Code (Licenses and Permits
Generally) and Section 1.04.110 (Double Fee for Failure to Obtain Required Licenses), shall
apply to this Chapter except where they are specifically modified by the provisions of this
Chapter.
13.25.020 Definitions.
The following definitions shall apply throughout this Chapter:
(a) Cigarette means any product that contains tobacco or nicotine, that is intended to be
burned or heated under ordinary conditions of use, and consists of or contains:
(1) any roll of tobacco wrapped in paper or in any substance not containing tobacco;
(2) tobacco in any form that is functional in the product, which, because of its
appearance, the type of tobacco used in the filler, or its packaging or labeling, is
likely to be offered to, or purchased by consumers as a cigarette; or
(3) any roll of tobacco wrapped in any substance containing tobacco that, because of
its appearance, the type of tobacco used in the filler, or its packaging and labeling,
is likely to be offered to, or purchased by, consumers as a cigarette described in
subparagraph (1)(a) above.
(4) the term includes all “roll-your-own,” i.e., any tobacco that, because of its
appearance, type, packaging, or labeling, is suitable for use and likely to be
offered to, or purchased by consumers as tobacco for making cigarettes.
(b) Department means the City of Aspen Environmental Health Department, and any
agency or person designated by the City Manager to enforce or administer the
provisions of this Chapter.
(c) Electronic Smoking Device means an electronic device that, when activated, emits a
vapor, aerosol, fume or smoke that may be inhaled or absorbed by the user, including,
but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, e-hookah and similar
devices. Electronic smoking device includes any component, part, or accessory of
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such a device, whether or not sold separately, and includes any substance, with or
without nicotine, intended to be aerosolized, vaporized or produces a fume or smoke
during the use of the device intended for human consumption.
(d) Licensee means the owner or holder of a Tobacco Product Retailer License.
(e) License refers to the Tobacco Product Retailer license.
(f) Licensing Administrator means the person(s) within the City government designated
with responsibilities by the City Manager for license issuance, renewal and collection
of fees.
(g) Minimum Legal Sales Age means twenty-one (21) years of age or older.
(h) Mobile Vending means any sales other than at a fixed location.
(i) Tobacco Product means 1) any product which contains, is made or derived from
tobacco or used to deliver nicotine or other substances intended for human
consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed
or ingested by any other means, including, but not limited to Cigarettes, cigars, little
cigars, chewing tobacco, pipe tobacco, snuff, bidis, snus, mints, hand gels; and 2)
electronic smoking device; 3) notwithstanding any provision of subsections 1) and 2)
to the contrary, “tobacco product” includes any component, part, accessory or
associated tobacco paraphernalia of a tobacco product whether or not sold separately.
4) The term “Tobacco Product” does not include: (i) any product that contains
marijuana; and (ii) any product made from or derived from tobacco and approved by
the Food and Drug Administration (FDA) for use in connection with cessation of
smoking.
(j) Tobacco Product Retail Location or Retail Location means any premises where
Tobacco Products are sold or distributed to a consumer including, but not limited to,
hookah bar, lounge or café, any grounds occupied by a retailer, any store, stand,
outlet, vehicle, cart, location, vending machine or structure where Tobacco Products
are sold.
(k) Tobacco Product Retailer means any Person who sells, offers for sale, or does or
offers to exchange for any form of consideration, Tobacco or Nicotine Products, or
Tobacco Paraphernalia. “Tobacco Retailing” shall mean the doing of any of these
things. This definition is without regard to the quantity of Tobacco Products or
Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange.
(l) Tobacco Product Retailing means the selling, offering for sale, or exchanging for any
form of consideration a Tobacco Product.
(m) Self-Service Display means the open display or storage of Tobacco Products in a
manner that is physically accessible in any way to the general public without the
assistance of the retailer or employee of the retailer and a direct person-to-person
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transfer between the purchaser and the retailer or employee of the retailer. A vending
machine is a form of self-service display.
(n) Tobacco Paraphernalia means any item designed for the consumption, use or
preparation of Tobacco Products.
(o) Vending machine shall mean any mechanical, electrical, or electronic self-service
device which, upon insertion of money, tokens, or any other form of payment,
dispenses product.
13.25.030 Minimum Legal Sales Age.
Tobacco Products shall not be sold to any person under the Minimum Legal Sales Age.
13.25.040 License requirements and prohibitions.
(a) Tobacco Product Retailer License required.
(1) It shall be unlawful for any person to act as a Tobacco Product Retailer in the City
unless he or she has obtained a License and maintains the same in full force and
effect pursuant to this Chapter for each location where Tobacco Product Retailing
occurs.
(2) No license may be issued to authorize Tobacco Product retailing anywhere other
than at a fixed location that is designated in the License application and approved
by the Licensing Administrator. Tobacco Product Retailing by a persons on foot,
from vehicles or through Mobile Vending is prohibited.
(3) Tobacco Retailing without a valid License is a nuisance as a matter of law.
(b) Display of License. Each License shall be prominently displayed in a publicly
visible location at the licensed Tobacco Product Retail Location.
(c) Display of Minimum Legal Sales Age Requirements. The requirement of the
Minimum Legal Sale Age for the purchase of Tobacco Retail Product shall be
prominently displayed in the entrance (or other clearly visible location) of the
Tobacco Product Retail Location.
(d) Other Prohibitions.
(1) A Tobacco Product Retail Location may only have one active License at one time.
Every License is separate and distinct and specific to a designated location. The
License cannot be assigned, delegated, sold, inherited or otherwise transferred
between persons or transferred to a different location, except as provided in this
Chapter. No Licensee shall exercise the privileges of any other License or
delegate the privileges of its own License.
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(2) A person or entity may not apply for a License for a one year period after a
License has been revoked.
(3) No License shall be issued to any person under twenty-one (21) years of age.
13.25.050 Conditions of the Tobacco Product Retail License.
The following conditions shall apply to the Licensee:
(a) Minimum age for persons handling Tobacco Products. No Person who is younger
than the minimum age established by the City to purchase and possess the Tobacco
Products shall, while employed at a Tobacco Product Retail Location, sell, stock,
retrieve, or otherwise handle Tobacco Products.
(b) Prohibition of self-service displays. Licensees shall stock and display all Tobacco
Products in a manner so as to make all such products inaccessible to customers
without the assistance of a retail clerk, thereby requiring a direct face-to-face
exchange of the Tobacco Product from an employee of the business to the customer.
(c) Requirements of positive identification. No person engaged in Tobacco Product
retailing shall sell or transfer a Tobacco Product to another person who appears to be
under the age of thirty (30) years without first examining the identification of the
recipient to confirm that the recipient is at least twenty-one (21) years of age.
(d) No Licenses shall be issued within 500’ of schools. No Licenses will be issued to
retailers located within 500 feet from schools or youth populated areas (community
specific locations, playgrounds, parks etc.), as determined by the Licensing
Administrator. This restriction shall not apply to an existing Retail Location within
500 feet of a youth populated area.
13.25.060 Application procedure.
(a) An application for a License shall be submitted and signed by an individual
authorized by the person or entity making application for the License. It is the
responsibility of each applicant and/or Licensee to be informed regarding all laws
applicable to tobacco retailing, including those laws affecting the issuance of said
License. No applicant and/or Licensee may rely on the issuance of a License as a
determination by the City that the proprietor has complied with all applicable tobacco
retailing laws.
(b) All applications shall be submitted on a form supplied by the Licensing
Administrator.
(c) A licensed Tobacco Product Retailer shall inform the Licensing Administrator in
writing of any change in the information submitted on an application for a License
within thirty (30) business days of a change.
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(d) All License applications shall be accompanied by the payment in full of all fees as
required in this Chapter.
13.25.070 Issuance of a Tobacco Product License.
Upon the receipt of a completed application for a License as required by this Chapter, the
Licensing Administrator shall sign and issue a License within thirty (30) days which period may
be extended by the Licensing Administrator for good cause unless substantial evidence
demonstrates that one or more of the following bases for denial exists:
(a) The information presented in the application is incomplete, inaccurate or false;
(b) The applicant seeks authorization for a License at a location where this Chapter
prohibits the issuance of a License;
(c) The applicant seeks a License for a location that is not appropriately zoned for the
use;
(d) The applicant seeks authorization for a License and the applicant’s current License is
suspended or revoked;
(e) The applicant is not qualified to hold the requested License under the provisions of
this Chapter; or
(f) The applicant and/or retail location is not in compliance with all City, state or federal
laws;
(g) The applicant is indebted to, or obligated in any manner to the City for unpaid taxes,
liens or other monies; or
(h) The payment of the licensing fee in the full amount chargeable for such License does
not accompany such License application.
13.25.080 Denial of Tobacco Product License.
(a) If the Licensing Administrator denies the issuance of the License, the Licensing
Administrator shall notify the applicant in writing by regular mail postage prepaid on
the address shown in the application. The notice shall include the grounds for denial.
Notice is deemed to have been properly given upon mailing.
(b) An applicant has the right to appeal the Licensing Administrator’s denial of an
application to the “Hearing Officer” that shall be appointed by the City Manager.
Such an appeal shall be initiated by filing a written request with the Licensing
Administrator within twenty (20) days of the date of the notice of denial of the
issuance of a License.
(c) The applicant’s failure to timely appeal the decision of the Licensing Administrator is
a waiver of the applicant’s right to contest the denial of the issuance of the License.
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(d) The appeal, including any right to further appeals, shall be conducted and controlled
by the provisions of Rule 106(a)(4) of the Colorado Rules of Civil Procedure. The
standard of proof at such appeal shall be a preponderance of the evidence and the
burden of proof shall be upon the applicant. The Licensee’s failure to timely appeal
the decision is a waiver of the Licensee’s right to contest the suspension or revocation
of the License.
13.25.090 License term, renewal and expiration.
(a) Term. All Licenses issued under this Code shall be for the period of one (1) year or a
fraction thereof and shall expire on the last day of December of each calendar year
unless otherwise specifically provided.
(b) Renewal of License. A Licensee shall apply for the renewal of the License and submit
the renewal License fee no later than thirty (30) days prior to expiration of the
existing term. The Licensing Administrator shall renew the License prior to the end of
the term, provided that the renewal application and fee were timely submitted and the
Licensing Administrator is not aware of any fact that would have prevented issuance
of the original License or issuance of the renewal.
(c) Expiration of License. A License that is not timely renewed shall expire at the end of
its term. The failure to timely obtain a renewal of a License requires submission of a
new application. There shall be no sale of any Tobacco Products after the License
expiration date and before the new License is issued.
13.25.100 License non-transferable.
(a) A License shall not be transferred from one (1) person to another or from one location
to another.
(b) When a License has been issued to a husband and wife, or to general or limited
partners, the death of a spouse or partner shall not require the surviving spouse or
partner to obtain a new License for the remainder of the term of that License. All
rights and privileges granted under the original License shall continue in full force
and effect as to such survivors for the balance of the term of the License.
13.25.110 Fee for License.
(a) The annual fee for original issuance of a License for applications filed in 2018 shall
be five hundred dollars ($500). The fee to issue or to renew a License may be
changed from time to time by resolution of the City Council. The fee shall be
calculated so as to recover the direct and indirect costs of administration and
enforcement of this Chapter, including, for example, issuing a License, administering
the License program, retailer education and training, retailer inspection, compliance
checks, community outreach and education, documentation of violations, and
prosecution of violators, but shall not exceed the cost of the regulatory program
authorized by this Chapter. Fees are nonrefundable except as may be required by law.
In addition, from time to time, as deemed appropriate by License Administrator, the
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License may be increased in accordance with Article X Section 20 of the Colorado
Constitution.
(b) All fees and interest from proceeds of License fees under this Chapter shall be
deposited in a separate cash account established by the City. These funds are to be
used exclusively to defray the costs of the local licensing program.
(c) As part of the annual budget process, the amount of fees charged by the City pursuant
to this Section shall be reviewed and, if necessary, adjusted to reflect the direct and
indirect costs incurred by the City in connection with the adoption, administration and
enforcement of this Chapter.
(d) Beginning with the fiscal 2018 budget, the amount of the fees charged by the City
pursuant to this Section shall be fixed by City Council as part of its annual budget
process. If, for any reason, such fees are not fixed by City Council as part of its
annual budget process, the fees for the preceding year shall continue to in full force
and effect until changed by City Council.
13.25.120 Compliance monitoring.
(a) Compliance monitoring of this Chapter shall be by the Department, as the
Department (or its designee) deems appropriate.
(b) The Department shall have discretion to consider previous compliance check history
or prior violations of a Licensee in determining how frequently to conduct
compliance checks of the Licensee with respect to individual Licensees.
(c) The Department shall inspect each Tobacco Product Retailer at least two (2) times
per twelve (12) month period. Nothing in this paragraph shall create a right of action
in any Licensee or other Person against the City or its agents.
(d) Compliance checks shall be conducted as the Department deems appropriate so as to
allow the Department to determine, at a minimum, if the Tobacco Product Retailer is
conducting business in a manner that complies with laws regulating access to
Tobacco Products. When the Department deems appropriate, the compliance checks
shall determine compliance with other laws applicable to Tobacco Products.
13.25.130 Suspension or Revocation of License.
(a) The following shall be grounds for suspension or revocation of the Licensee’s
License:
(1) A violation by a Licensee or Licensee’s officers, agents, or employees of any of
the provisions of this Chapter, or any laws of the United States, the State of
Colorado or ordinances of the City relating to the sale or furnishing of tobacco or
Cigarettes to minors, or the storage or display of Cigarettes or tobacco products.
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(2) Violations of any conditions imposed by the Licensing Administrator or Hearing
Officer in connection with the issuance or renewal of a License.
(3) Failure to pay State or local taxes that are related to the operation of the business
associated with the License.
(4) Loss of right to possession of the licensed premises.
(5) Fraud, misrepresentation, or a false statement of material fact contained in the
original or renewal license application;
(b) The City Manager shall appoint a Hearing Officer to hear all actions relating to the
suspension or revocation of Licenses pursuant to this Chapter. The Hearing Officer
shall have the authority to suspend, revoke, or impose remedial sanctions for
violations.
(c) The Licensing Administrator shall commence suspension or revocation proceedings
by petitioning the Hearings Officer to issue an order to the Licensee to show cause
why the Licensee’s License(s) should not be suspended or revoked. The Hearing
Officer shall issue such an order to show cause if the petition demonstrates that
probable cause exists to determine that one or more grounds exist pursuant to
subsection (a) to suspend or revoke the Licensee’s License. The order to show cause
shall set the matter for a public hearing before the Hearing Officer.
(d) Notice of the order to show cause order and hearing date shall be mailed to Licensee
by regular mail, postage prepaid, at the address shown on the License no later than
thirty (30) days prior to the hearing date. Notice is deemed to have been properly
given upon mailing.
(e) The notice to show cause hearing and any subsequent right to appeal shall be
conducted and controlled by the provisions of Rule 106(a)(4) of the Colorado Rules
of Civil Procedure. The standard of proof at such hearings shall be a preponderance
of the evidence and the burden of proof shall be upon the Licensing Administrator
and/or Department.
(f) In determining whether a License should be suspended or revoked, and in
determining whether to impose conditions in the event of a suspension, the Hearing
Officer shall consider the following factors:
(1) The nature and circumstances of the violation;
(2) Corrective action, if any taken by the Licensee;
(3) Prior violations, if any by the Licensee;
(4) The likelihood of recurrence of the violation;
(5) Whether the violation was willful; and
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(6) Previous sanctions, if any, imposed on the Licensee.
13.25.140 Penalties and fines.
(a) Licensees: penalties and fines. In addition to any other penalty authorized by law,
and if the Hearing Officer determines based on a preponderance of the evidence, that
the Licensee, or any of the Licensee’s agents or employees, has violated any of the
requirements, conditions, or prohibitions of this Chapter, or has pleaded guilty, “no
contest” or its equivalent, or admitted to a violation of any law relating to the sale of
tobacco to minors including but not limited to C.R.S. sections 18-13-121 and 24-35-
503, the Hearing Officer may consider the following non-binding guidelines in
determining the sanctions to be imposed upon a Licensee as follows:
(1) One violation within thirty-six (36) months: a civil penalty of five hundred dollars
($500) and/or suspension of the License for three (3) days.
(2) Two violations within thirty-six (36) months: a civil penalty of one thousand
dollars ($1,000) and suspension of the License for seven (7) days.
(3) Three violations within thirty-six (36) months: a civil penalty of one thousand five
hundred dollars ($1,500) and a minimum twenty (20) days suspension of the
License.
(4) Four violations within thirty-six (36) months: a civil penalty of two thousand
dollars ($2,000) and revocation of License.
The actual sanction imposed upon a Licensee for any violation may vary from the above-stated
guidelines when warranted by the specific facts and circumstances of the case.
(b) After the effective date of this ordinance, it shall be unlawful for any Tobacco
Product Retailer to sell a Tobacco Product without a License as mandated under this
Chapter, or with a suspended or revoked License. In addition, the Hearing Officer
may impose civil penalties of up to $2,500 for each separate Tobacco Product sold
during the period of non-compliance with this Chapter. A retailer whose License has
been suspended or revoked 1) shall not display Tobacco Products in public view
during the timeframe in which the License is suspended or revoked; and 2)
advertisements relating to Tobacco Products that promote the sale or distribution of
such products from the location that could lead a reasonable person to believe that
such products can be obtained from that location shall not be displayed.
13.25.150 Enforcement.
(a) The remedies provided by this Chapter are cumulative and in addition to any other
remedies available at law or in equity. In addition to other remedies provided by this
Chapter or by other law, any violation of this Chapter may be remedied by a civil
action brought by the City Attorney, including but not limited to nuisance abatement
proceedings and injunctive relief.
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(b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of
this Chapter shall cause the offender to be subject to the penalties set forth herein or
in the Aspen Municipal Code.
13.25.160 No Rights in License.
Every License issued under this Chapter confers only a limited and conditional privilege subject
to the requirements, conditions, limitations and qualifications of this Chapter. The License does
not confer a property right of any kind. The License and privilege created by the License may be
further regulated, limited or completely extinguished at the discretion of City Council or the
electorate of the City, as provided in this Chapter, without any compensation to the Licensee.
Nothing contained in this Chapter grants to any Licensee any vested right to continue operating
under the provisions of this Chapter as they existed at the time the License was approved or
issued, and every License shall be subject to any ordinance or prohibition adopted after the
License was approved or issued.
13.25.170 Effective Date.
This Chapter shall become effective as of January 1, 2018 and enforceable on and after that date.
Any Tobacco Product Retailer without a License after the effective date will be in violation of
this Chapter.
Section 2: Litigation
This ordinance shall not affect any existing litigation and shall not operate as an abatement of
any action or proceeding now pending under or by virtue of the ordinances repealed or amended
as herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3: Severability
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this
ordinance in the office of the Pitkin County Clerk and Recorder.
Section 4: Public Hearing
A public hearing on the ordinance shall be held on the 12th day of June, 2017 in the City Council
Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public
notice of the same was published in a newspaper of general circulation within the City of Aspen.
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12
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 8th day of May, 2015.
_______________________
Steven Skadron, Mayor
ATTEST:
_____________________________
Linda Manning, City Clerk
FINALLY, adopted, passed and approved this ___ day of ____, 2017.
_______________________
Steven Skadron, Mayor
ATTEST:
_______________________
Linda Manning, City Clerk
APPROVED AS TO FORM:
__________________________
James R. True, City Attorney
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Memo: Tobacco 21 April 12, 2017
To City Council –
A year ago I read an article in the New England Journal of Medicine titled “Have
Tobacco 21 Laws Come of Age?” and it struck me - I learned that although the
federal minimum legal sales age (MLSA) of tobacco products was 18, any U.S.
locality or state has the power to raise this age to 21. Today, over 225 U.S. localities
and the states of California and Hawaii have enacted this into law, and research had
shown it’s effective in decreasing high school tobacco use by up to 50%, protecting
this cohort from a lifetime addiction to nicotine. Why is momentum surging for this
initiative now? Since 2014, after decades of effective anti-smoking campaigns and
decreasing smoking rates in the U.S., there has been a surprising upturn in youth
tobacco use. This is likely due to the recent introduction and popularity of e-
cigarettes (and other ENDS – “electronic nicotine delivery systems”) and their
marketing toward teens. As the Pitkin County Medical Officer, I saw an opportunity
to improve the health of our youth by proposing a Tobacco 21 law locally in the City
of Aspen. I contacted the Preventing Tobacco Addiction Foundation’s national office
in Ohio, and connected with Eric Brodell, MPH, their Western States Regional
Director. We have worked together over the past year to set forth Tobacco 21 in
Aspen today.
Smoking rates in the U.S. have declined substantially since the Surgeon General’s
1964 report, from 42 percent to now about 18 percent; however, it remains one of
the biggest public health problems in the U.S. as almost 500,000 Americans still die
prematurely each year from diseases related to cigarette smoking. This makes up
85% of deaths from lung cancer. In Colorado, like most other states, it is the number
one cause of preventable death, and accounts for 5,100 deaths a year. Surprisingly,
90% of adult smokers started smoking before the age of 18. Each day more than
3,000 adolescents in the U.S. try their first cigarette. The developing teenage brain
has plasticity, and is therefore uniquely vulnerable to the rewarding effects of
nicotine. Nicotine is one of the most highly addictive drugs, taking effect on the brain
within a minute. Teen years are an age of experimentation and risk-taking, and
susceptibility to peer pressures. Unfortunately, e-cigarettes have not only been
gaining popularity by being cleverly marketed toward teens with over 7,000 flavors,
they have also been shown to be a transition into cigarette smoking and other
recreational drug use. Information from a UCSF study has shown youth that never
would have touched a traditional combustible cigarette are now using e-cigarettes
and then transitioning to traditional cigarettes. Research has shown that teens
purchase cigarettes from their peers - 90% of the “social sources” (friends and
family) of tobacco for the 12-18 year olds are the 18-21 year olds. It has also been
shown that youth typically do not make the effort to travel to neighboring localities
if the age has increased to 21 in their city. This combination of factors make youth
the most important and effective focus for tobacco mitigation.
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Support for Tobacco 21 is high. A 2015 CDC survey found that a surprisingly 75% of
respondents, and 70% of current smokers favored raising the MLSA of tobacco to
21. The 2012 Surgeon General’s report stated that tobacco prevention efforts need
to focus on youth. In 2015 the Institute of Medicine published an extensive report
titled “Public Health Implications of Raising the Minimum Age of Legal Access to
Tobacco Products,” stating that predictive models of Tobacco 21 found the greatest
reduction in tobacco initiation would be in the 15-17 year old range. It predicted a
25% decrease in youth initiation and a 12% drop in overall prevalence of tobacco
use, reinforcing the effectiveness of Tobacco 21. In addition high popular support
and predicted effectiveness, Tobacco 21 would result in minimal economic impact,
typically less than 2% of retail sales lost.
At this first City Council work session, Mr. Brodell and I would like to build on this
background presented here, present research that has shown the effectiveness of
Tobacco 21, discuss the pros and cons of enacting this initiative locally, and explain
how Tobacco 21 will specifically benefit the City of Aspen in building a healthy
community. We will present a draft ordinance with the goal to raise the age to 21 for
tobacco purchase, and details of how this can be enforced in the city. We will explain
some laws specific to Colorado that limit cigarette regulation, and propose a
Tobacco Retail License, discussing the details of its costs, fines, and management.
Education will play a key role as the evidence of the harms of nicotine and cigarettes
is now undisputable. I look forward to your support as we hope to make Aspen the
first city in Colorado to enact Tobacco 21, and to create a platform for other
Colorado localities to follow suit.
Kimberly Levin, MD, MPH
Pitkin County Medical Officer
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Tobacco use results in over 500,000 American deaths each year,
equivalent to three 747s crashing, killing all aboard, every single day. It
costs us annually over $289 billion. 2800 teenagers try smoking every
day, and unless there is a trajectory change this addiction will
dramatically shorten the lives of 5.6 million children alive today.1 For
years we’ve successfully pursued a strategy of education, counter-
marketing, increasing taxes and limiting tobacco access to teenagers.
These worked to a degree, obviously not enough, but now money is
tight, “tax” is an epithet and new forms of nicotine like e-cigarettes
threaten our kids. It’s time for a change.
The Example of Needham: In 2005, Needham,
Massachusetts (population 30,000) raised its sales age
for tobacco to 21. Despite being tightly surrounded
by other Boston suburbs, the effect was powerful.
The MetroWest Health Foundation examined tobacco
use in a survey of 20 suburban high schools. Only
Needham had moved to age 21 and the result was a
48% drop in 30 day prevalence and a 62% drop in
frequent (20/30 day smoking)2, declines nearly triple
those of surrounding communities. If this result can be
widely duplicated, age 21 will become by far the single
most effective tobacco prevention intervention ever
utilized in the US.
Lessons from the Drinking Age: There was a
lesson hard-won with another troublesome drug,
alcohol. The unpopular, forcible draft of millions of
disenfranchised teenagers brought about the 26th
Amendment giving 18 year-olds the vote. Twenty-five
states also lowered their drinking age to 18. The
immediate effect was disaster on the highways and a
surge in teen alcohol use, alcoholism and other drug
use. Congress, at the behest of President Reagan
forced all states to raise their age minimum back to 21.
There followed a rapid drop in highway deaths and a
sustained decrease high school drinking, alcoholism and
other drug use. The problem of teen drinking wasn’t
solved but it was clearly and substantially ameliorated.
Age 21 For All Nicotine Products: A Logical, Powerful Intervention.30 Day Prevalence5%
8%
10%
13%
15%200620082010MetroWest (age 18)Needham (age 21)Frequent (20 / 30 days)1.5%
3.0%
4.5%
6.0%200620082010TOBACCO21.ORG @TOBACCO21 OVER
!
Alcohol is used differently than tobacco. Alcohol is
used occasionally, and there may be an incentive to
give alcohol to a teen to induce a party atmosphere
or sexual compliance. There is less incentive to buy a
teen a daily pack of cigarettes. Age 21 for nicotine
may work substantially better than did 21 for alcohol.
The top line tracks high-school seniors who had
at least one drink in the previous 30-day period
and reflects a drop from 70% to 50%. The
bottom line, more relevant to the daily addiction
of cigarettes, shows a drop in daily use from 6%
to 2.5% -down more than 50% – similar to
Needham.
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VIII.a
The 90% from 2% Phenomenon. Social sources are enormously
important in adolescent initiation of tobacco use and consolidation toward
addiction. 90% of the suppliers of tobacco products to those under age 18
are themselves under age 21.4 Yet only 2% of total dollar cigarette sales go
to those ages 18 to 21.5 Thus this tiny sliver of the total number of
cigarettes sold produce the overwhelming majority of new nicotine addicts
and smokers. This is undoubtably the lever by which age 21 works to reduce
teenage initiation and addiction to nicotine.
Adolescents Have Plastic Brains. A
tsunami of neurologic data now underscores the
vulnerability of the youthful brain. Kids’ astonishing
cognitive gains parallel the rapid modulation of
neuroreceptors that can then be reset for life. The nicotinic-cholinergic receptors
that affect dopamine transport are a case in point. Early high-level nicotine exposure
ramps up these receptors resulting in a brain that feels perpetually starved for the
powerful neurotransmitter dopamine. This leaves kids and the adults they will grow into at risk for depression,
anxiety, irritability and substance abuse and other high risk behaviors, as scores of studies indicate.
E-cigarette use has skyrocketed due to televised sexual and celebrity ads as
well as candy flavors. Seventeen percent of high school seniors smoke highly addictive
e-cigarettes3. Couple this with the the thousands of “vape shops” that have opened in
the last few years4, and you have a recipe for an addiction epidemic. For adolescents
and pregnant women it is the nicotine which does the damage, not the “tars.”
Age 21 Enjoys 75% Popular Support. In July of 2015 the CDC conducted a nationally representative
survey of 4,219 United States citizens investigating support for Tobacco 21. 75% of respondents, and 70% of
current smokers, favored raising the tobacco age to 21.3 The majority of adults in every demographic and
smoking-status category supported increasing the minimum age. Raising the age to 21, it seems, is easy to
understand, straightforward and hugely popular across the board.
Supported by the Institute of Medicine & FDA. In March of 2015 the
prestigious Institute of Medicine released a long-awaited 360 page report
commissioned by the FDA, which detailed the enormous public health benefits that
would result from raising the tobacco age to 21. These include a 25% decline in
smoking initiation by teenagers, and a 12% overall drop in smoking prevalence.
Nearly immediate effects include 16,000 cases of preterm birth and low birth weight
averted in the next 5 years. The report also predicted that for kids alive today, 4.2
million years of life would be saved by virtue of this logical, simple policy change.
A National Movement with Local Roots. Over 225 cities in 16 states have now enacted strong age
21 protections for all nicotine products. Thanks to the dedication of local advocates, Hawaii became the first
state in the nation to raise their tobacco age to 21 in June of 2015, and California followed in April of 2016. It
is important to note that Hawaii and California’s efforts began at a local level. Tobacco lobbyists wield little
power with our neighbors, and our local town and city councils.
1 The health consequences of smoking: 50 years of progress. A report of the Surgeon General. U.S. Department of Health and Human Services.
2014.
2 Needham, MA, Public Health Department. http://www.needhamma.gov/DocumentCenter/View/8554
3 King, Brian A. et al. Attitudes Toward Raising the Minimum Age of Sale for Tobacco Among U.S. Adults. American Journal of Preventative Medicine.
July 6, 2015.
4 JR, Coleman M. Sources of tobacco for youths in communities with strong enforcement of youth access laws. Tob Control 2001:10:323-8
5 Winickoff JP, Hartman, L, Minimal Retail Impact of Raising Tobacco Sales Age To 21. Am J Public Health, November 2015.
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as P en me
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progressir,e rnedicirre / old.fashioncd care
care
l,.r..r lt ottii,.
1,'hu trr
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5t11t2017
To: Aspen City Council.
Aspen Medical Care is pleased to endorse the Tobacco 21 proposal.
ln brief, as famiry physicians and pediatricians (and residents of the vafleyr) we feer thatthe evidence documenting the harms of any and afl use oi nicotine proou'ti. -- ' '-'
overwhelming.
Nevertheress, arternative facts abound. when such misinformation is combined with theinherent distractions and chaflenges of youth, it is difficuit for te"n. to ,na[" *i.choices. Recognizing the impursive nature of such aecrsions, we are comfortabre withthe data that have shown how a variety of barriers such as toba"co 21 can deravexperimentalion and, thereby prevent nicotine addiction. w" iit"*i* "pJ"riinJproactive decision of some rerairers such as crark,s Market Aspen ftr"t i!r" ,oir"ntrrirvchosen to limit their patrons exposure to nicotine products.
It is important to note that over 6oyo.of 6-12th grade nicotine users express a desire toquit. lt is encouraging that over l0.o/o have triel to quit. ert fl.,.r" t""i, tinJ1.,".r""ruu,in-an unfortunate prace; for once nicotine receptors are turned on, they aoni rik;i;i;;;off.
so let's promote hearthy behaviors for everyone and specifica y herp teens get a freshbreath of air as they step into their future. fn"r",. ,"riiy no justification to do otherwise.
Aspen Medical Care
Jennifer Connery, MD; Anne Goyette, MD; Charlene Guggenheim, MD; Mary Harris,MD, Shari Kiehnbaum, pAC; Claudia Nelson, MD; Oewiyi" ruieUur, VfO; Xiri S;il"r,MD)
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VIII.a
May 5, 2017
City of Aspen
City Hall
130 S. Galena St
Aspen, CO 81611
RE: Tobacco21 Ordinance
Dear Aspen City Council Members,
I am writing you to express support from Pitkin County Public Health for the adoption of the
city ordinance raising the legal minimum age for sale of all tobacco and nicotine products to
age 21. Even though adolescent smoking rates have declined in recent years, nearly one in five
high school seniors still uses tobacco. Sadly, adolescents’ use of e-cigarettes, nicotine vapor
devices, hookahs and small cigars has increased dramatically, threatening to completely erase
a decade of progress.
It’s not news that according to the Centers for Disease Control(CDC) tobacco remains the
leading preventable cause of death in this country and the world. Tobacco use is a major factor
in causing four out of the five leading causes of death by heart disease, cancer, lung disease
and stroke. In fact, the CDC tells us that “tobacco causes about a third of heart disease and
cancer, and most emphysema”.
During the years from ages 18-21, youthful experimentation with tobacco often accelerates
into daily use. It’s a time when the adolescent brain is highly vulnerable to the effects of a
powerful addictive agent like nicotine. Exposure during this period may result in permanent
neurological receptor changes that lead to a lifetime nicotine habit and resulting illness. Raising
the tobacco sales age to 21 has been shown to reduce high school smoking by over 50% and
also protects younger teens, since 90% of those who provide cigarettes to kids under 18 are
Schultz Public Health and Human
Services Building
0405 Castle Creek Road
Suite 202
Aspen, CO 81611
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VIII.a
Pitkin County Department of Public Health Page 2
themselves under 21.
The powerful tobacco industry targets youth as replacements for adults who die from tobacco
use. By raising the age of purchase to 21, and implementing local licensing, Aspen can protect
its youth from becoming replacements. The tobacco lobby has derailed smoking initiatives in
Congress and our state legislature. But, where federal and state governance fails, local
leadership has succeeded. Virtually all statewide workplace and public smoking bans began
with local government regulations. Pitkin County has successfully implemented tobacco bans
on the CMC and Aspen Valley Hospital campuses. Smoking has long been prohibited in public
buildings and restaurants in Pitkin County.
We at Public Health believe that businesses can be valuable partners in promoting healthy
lifestyle choices, including deterring youth from tobacco addiction at a time when their brains
are still developing and highly susceptible to the impacts of nicotine.
The 2013 Pitkin County Public Health Improvement Plan identified Substance Use as one of the
key health priorities to address in the five year plan. This topic has also emerged during the
current Community Health Assessment as a top priority for the next five years. This ordinance
will take another step toward creating the conditions in which the healthy choice becomes the
easy choice for our youth. Pitkin County Public Health appreciates the leadership the City of
Aspen has taken in reducing a lifetime of negative health impacts for our youth.
Sincerely,
Karen Koenemann
Public Health Director
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Remarks before the Aspen City Council
June 12, 2017
Thomas S. Dunlop, MPH, REHS
regarding
Tobacco 21 Legislation
1976-1980, EH Dir for City of Aspen, Retired from Aspen 2001.
1980-1999, Director of joint City of Aspen/Pitkin Co EH Dept
2001-present Pitkin Co. Env Public Health Advocate reporting to the
Board of Health
1985 City passed first no-smoking ordinance
Env Health Dept. was enforcement dept
Arguments from restaurant industry — drive business down valley,
did not happen (sale tax evidence) Restaurant workers loved it — 8
hr work shift exposures to smoke was lifted
Sharon Mollica — public health advocate — Oprah Winfrey
appearance with a local restaurant owner 1987
Aspen Ord. became a model for all of Colorado and nationally
1994 Pitkin Co Clean Indoor Air Act
Env Health was enforcement dept.
By now arguments against clean indoor air were harder to
support, the evidence was becoming unequivocal. Tobacco kills.
Precautionary Principle — Making a decision before having complete
clinical or environmental evidence supporting the decision. Surgeon
General C. Everett Coop declared tobacco caused debilitating illness
and death in the 1980s. He had less than complete clinical evidence. His
1986 report on passive smoke was a watershed moment against
tobacco use. However, empirical evidence pointed to his decision
having to be made in support of the public's health.
1
In 1985 and 1994 the City and County took bold steps because there
was mounting evidence that tobacco kills. Keep in mind the following
statistics from the Centers for Disease Control and Prevention that I
retrieved from the CDC webpage on June 6, 2017.
"More than 16 million Americans are living with disease caused by
smoking. Smoking causes cancer, heart disease, stroke, lung diseases,
diabetes and COPD. Worldwide tobacco causes nearly 6 million deaths
per year, and current trends show that tobacco use will cause more
than 8 million deaths annually by 2030. Cigarette smoking is
responsible for more than 480,000 deaths per year in the United States,
including more than 41,000 deaths resulting from second hand smoke
exposure. If smoking continues at the current rate among U.S. youth,
5.6 million of today's Americans younger than 18 years of age are
expected to die from smoking-related illness."
Electronic cigarettes today are where tobacco was decades ago, the
clinical public health data is still being gathered. Time for the
precautionary principle to be applied again.
In conclusion, the tobacco industry work force goes to work each day
knowing they will kill 480,000 of their customers each year. That is
2,400 airplane crashes (200 souls per plane) in the US each year. Where
is the outrage??
As the Pitkin County Environmental Public Health Advocate I urge you
to pass Tobacco 21 legislation soon. There is no logical or supportive
argument opposing passage of any legislation that discourages use of
tobacco and e-cigarettes.
Thank you,
Tom Dunlop
2
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