HomeMy WebLinkAboutresolution.council.019-04RESOLUTION NO. I~
Series of 2004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING AN AGREEMENT BETWEEN RENO. SMITH. ARCHITECTS, L.L.C. AND
THE CITY OF ASPEN, COLORADO FOR DESIGN SERVICES FOR THE WHEELER
OPERA HOUSE FIRST FLOOR MASTER PLAN, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council an agreement between Reno
Smith Architects, L.L.C. and the City of Aspen, a tree 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 agreement between Reno
Smith Architects, L.L.C and the City of Aspen, a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager of the City of Aspen to execute said agreement
on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
day of~,_, 2004.
I, Kathryn S. Koch, duly appoimed 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 day hereinabove stated.
Clerk
PART ONE AGREEMENT FOR DESIGN/BUILD PROJECT
THIS AGREEMENT, made and entered into on MARCH 15, 2004, by and between the CITY
OF ASPEN, Colorado, hereinafter called the "City", and RENO SMITH ARCHITECTS, L.L.C. ,
hereinafter called the "Design/Builder".
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 entitled: WHEELER OPERA HOUSE FIRST
FLOOR MASTER PLAN, and,
WHEREAS, the Design/Builder, 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
proposal in accordance with the terms of said Invitation for Proposals; and,
WHEREAS, the City, in the manner prescribed by law; has publicly opened, examined,
and canvassed the proposals submitted in response to the published Invitation for PrOposals
therefore, and as a result of such canvass has determined and declared that it is in the City's
best interest to award to the Design/Builder this Part 1 Agreement therefore, for the sum or
sums set forth herein;
NOW, THEREFORE, in consideration of the payments and Part 1 Agreement herein
mentioned:
1. The Design/Builder shall commence and complete the WOrk as fully described in
the Contract DoCuments.
2. The Design/Builder shall furnish all of the materials, supplies, tools, equipment,
labor and other services necessary for the Work described herein.
3. The Design/Builder 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 Design/Builder agrees to perform all of the Work described in the Contract
Documents and comply with the terms therein for a sum not to exceed THIRTY THOUSAND
DOLLARS ($30,000.00) or as shown on the Proposal.
~C3-971.doc **CC1 Page 1
5. The term "Contract Documents" means and includes the documents listed in the
City of Aspen General Conditions for Part 1 Design/Build Projects, the Special Conditions, if
any, and Design/Builder's Proposal. 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 Design/Builder 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 Part I Agreement-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 Part 1 Agreement 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 Design/Builder respectively and their agents, representatives,
employees. Successors, assigns, and legal representatives. Neither the City nor the
Design/Builder 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 Design/Builder or tt~e City may
assign this Part I 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 Design/Builder
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 pedormed, 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 Part 1 Agreement 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
Part 1 Agreement, the prevailing party shal be entitled to its costs and reasonable attorney's
fees.
13. This Part 1 Agreement 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 Part I Agreement.
~_.C3-971.doc **CC1 Page 2
14. The undersigned representative of the Design/Builder, as an inducement to the
City to execute this Part 1 Agreement, represents that he/she is an authorized representative of
the Design/Builder for the purposes of executing this Part 1 Agreement and that he/she has full
and complete authority to enter into this Part. 1 Agreement for the terms and conditions specified
herein.
IN WITNESS WHEREOF, the parties agree hereto have executed this Part I Agreement on the
date first above written.
ATTESTED BY:
RECOMMENDED FOR APPROVAL:
~n~rtment
CITY OFcASPEN. COLORADO
' e: ~ ~ _f~_~_(~~.
APPROVED AS TO FORM:
ATTESTED BY: DESIGN/BUILDER:
Title:
Note: Certification of Incorporation. shall be exe(~uted if Design/Builder is a Corporation. If a
partnership, the Agreement shall be signed by a Principal and indicate.title.
~.C3-971 .doc **CC1
Page 3
CERTIFICATE OF INCORPORATION
(To be' completed if Design/Builder is a Corporation)
STATE OF )
)ss.
COUNTY OF .)
On this day of ,20
, before me appeared
, to me personally known, who,
being by me first duty sworn, did say that s/he is of
and that the seal affixed to
said instrument is the corporate seal of said corporation, and that said instrument was signed
and sealed in behalf of said corporation by authority of its board Of directors, and said deponent
acknowledged said instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above
written.
Notary Public
My commission expires:
Address
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ATTACI-/~IENT A
SCOPE OF WORK
WHEELER OPERA HOUSE. FIRST FLOOR MASTER PLAN
The second Phase of the YVheeler Opera House First Floor Master Plan(FFMP) is to fully
design and prepare all docmments for the construction. As outlined in the RFP, the scope
ofw0rk/ncludes improvements to the Box Office, Visitors Center and Bentleys as
outlined below and in the attached drawing. This includes the following:
1. Consu-action Document Phase
A. Design Development
1. Develop Design of Interior Spaces and Elements
2. Review Sketches with Wheeler Opera House Executive Director,
W-heeler Staff, ACRA Staff, Bentley's Management, and Asset
Management D ep artrnent.
3.. Develop Dimensional Floor?lans
4. Develop Dimensional Interior Elevations
5. Design and Cost Review with Wheeler Executive Director, Asset
Management Department, and Fenton Construction
B. Contract Documents
1. Detailed Floor Plans and Demolition Plan
2. Detailed Interior Walt Elevations
3. Detailed Building Sections
4. Interior Details (millwork, trim, etc.) .
5. Schedules of Windows, Doors, Finishes
6. Electrical Plan
7. Lighting Layout Plan (reflected ceiling plan)
8. Specification notes
9. Review with Wheeler Executive Director, Asset Management
Department, and Fenton Construction
2. Consta'uction Phase
A. Construction Administration
1. Issue Construction Documents and Prepare Clarifications and
Addenda
2. Confer with Building Official ro Facilitate Issuance of Bailding Permit
3. Review Submittals, Shop Drawingg, Samples
4. Conduct Regular Job Site Meetings (1 per week)
5. Serve as Point of Contact for Owner/Contractor and Consultants
Communications and Issue Written' Reports
6. Review Contractor's Monthly:Payment Applications
7. Determine Date of Substantial Completion and List of Final Items to
be Rectified.
Tlxe design services do not include services for survey, legal, special planning reviews, or
engineering consuitants (ie. Acoustic, Structural, MeChanical/Electrical, etc.). It is anticipated,
due to the limited scope these services will be performed as deSign-build with. sUb-contractors.
Should engineering be required Reno Smith Architects will coordinate this with the Owner in
advance.
The services anticipate three (3) meetings with the Owner/Owner's groups during the Design and
Contract Document Phases. Should additional meetings be required, this will be conducted as an
hourly rate based on the listed current rates.
Total Estimated Costs broken Out by Category:
1. Construction Docmnent Phase A. Design Development
B. Contract Documents
$ 6,750.00
$16,200.00
2. Construction Phase
A. Construction Administration
$ 4,050.00
3. Contingency $ 3.000.00
Estimated Total
$30,000.00
RENO - SMITH ARCHITECTS, L.L.C. CURRENT RATE SCHEDULE
PRINCIPALS
PROJECT ARCHITECT
DESIGNER
CLERICAL
$120.00 PER HOUR
$ 95.00 PER'HOUR
$ 85.00 PER HOUR
$ 50.00 PER HOUR
All outside reimbursable expenses such as printing, copying, and long distance telephone calls
are billed at our direct costs.
Bills are rendered and due payable monthlj. Terms: Due and payable Within 30 days upon
receipt of statements. 1.5% per month interest charged on all past due accounts.
The work as described the Construction Document Phase is expected to be complete by April 30,
2004. The Construction portion of the Design/Build agreement anticipated to be complete June
16, 2004 and will not exceed $188,982.00.
I ®i
CITY OF ASPEN, COLORADO
GENERAL CONDITIONS FOR
PART ONE AGREEMENT
OF DESIGN/BUILD PROJECTS
(Version DBI-101)
TABLE OF CONTENTS
Article 1 - Design/Builder.
1.1. Services .................................................................................................................................................................................................. 2
1.2. Responsibilities ................................................................................................................................................................................................ 2
1.3. Basic Services ........................................................................................................................... : ...................................................................... 3
] .4. Additional Services .......................................................................................................................................................................................... 3
Article 2 - City.
2.1. Responsibilities ............................................................................................................................................................................................. 4
Article 3 - Ownership and Use of Documents and Electronic Data.
Article 4 - Time.
Article 5 - Indemnification and Insurance
5.I. Indemnification ................................................................................................................................................................................................ 7
5.2. Design/Builder's Insurance
5.3. City's Liability Insurance
Article 6 ~ Miscellaneous Provisions.
6.5.
6.6.
6.7.
6.8
6.9
6.I0
6.11
6.12
6.13
6.I4
6.I5
6.16
6.17
6.18
6.19
Nondiscrimiuation ................................................................................................................................................................................. 9
Giving Notice · ................................................................................................................................................................. 10
General .................................................................................................................................................................. 10
Independent Contractor Stares ............................................................................................................................................................... I 1
Prohibited Interest ................................................................................................................................................... 11
Wa~Tanties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest ....................................................................... 11
Payment Subject to Annual Appropriations .............................................................................................................................. 11
Design/Builder Acceptance .............................................................................................................................................. 12
Successors and Assigns ............................. ' ............................................................................................................................. 12
Third Parties ..................................................................................................................................................................... 12
Waiver ............................................................................................................................................................ 12
Contract Made in Colorado .................................................................................................................................................. 12
Attorneys' Fees ................................................................................................................................................................. 12
Waiver of Presumption ........................................................................................................................................................ 12
Severability Clause ................................................................................................................................................................ 12
Article 7- Termination of Agreement
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 Part One Agreement entered into between the City and the Design/Builder. In the
event of conflict or inconsistency among the Contract Documents, the order of precedence set forth in the Design/Build
A~eement shall govern the interpretation of the Part One Agreement between the City of Aspen and the Design/Builder.
Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in
accordance with their recognized meanings, pro~vided however that those terms required to be defined in the Proposal by
the Design/Builder shall have the meaning given to them in the Proposal to the extent that they are not in conflict with
any other parr or term of the Contract Documents.
ARTICLE 1
DESIGN/BUILDER
1.1 SERVICES
1.1.1 Preliminary design, budget, and schedule comprise the services required to accomplish the preparation and
submis sion of the Design/Builder's Proposal as well as the preparation and submission of any modifications to the
Proposal prior to execution oftjae Part 2 Agreement.
1.2 RESPONSIBILITIES
1.2.1. Design services required by this Pm't 1 A~eement shall be performed by qualified architects and other
design professionals. The contractual obligations Of such professional persons or entities are undertaken and
performed in the interest of the Design/Builder.
1.2.2 The agreements between the Design/Builder and the persons or entities identified in this Part 1 Agreement,
and any subsequent modifications, shall be in writing. These agreements, including financial arrangements with
respect to this Project, shall be promptly and fully disclosed to the City upon reqi~est.
1.2.3 Construction budgets shall be prepared by qualified professionals, cost estimators or contractors retained by
and acting in the interest of the Design/Builder.
1.2.4 The Design/Builder shall be responsible to the City for acts and Omissions of the Design/Builder's
employees, subcontractors and their agents and employees, and other persons, including the Architect and other
design professionals, performing any portion of the Design/Builder's obligations under this Part 1 Agreement.
1.2.5 If the Design/Builder believes or is advised by the Architect or by another design professional retained to
provide services on the Project that implementation of any instruction received from the City would cause a
violation of any applicable law, the Design/Builder shall notify the City in writing. Neither the Design/Builder not
the Architect shall be obligated to perform any act which either believes will violate any applicable law.
1.2.6 Nothing contained in this Part 1 Agreement shall create a contractual relationship between the City and any
person or entity other than the Design/Builder.
1.3 BASIC SERVICES
1.3.1 The Design/Builder shall provide a preliminary evaluation of the City's program and project budget
requirements, each in terms of the other.
1.3.2 The Design/Builder shalI visit the site, become familiar with the local conditions, and correlate observable
conditions with the requirements of the City'-s program, schedule and budget.
1.3.3 The Design/Builder shall review laws applicable to design and construction of the Project, correlate such
laws with the City's program requirements, and advise the City if any program requirement may cause a violation of
such laws. Necessary changes to the City's program shall be accomplished by appropriate written modification or
disclosed as described in Paragraph 1.3.5.
1.3.4 The Design/Builder shall review with the City akemative approaches to design and construct/on of the
Project.
1.3.5 The Design/Builder shall submit to the City a Proposal,. including the completed Preliminary Design
Documents, a statement of the proposed schedule for completion of the Project. Preliminary Design Documents
shall consist of preliminary design drawings, outline specifications or other documents sufficient to establish the
size, quality and character of the entire Project, its architectural, structural, mechanical and electrical systems, and
the materials and such other elements oft he Project as may be ~P~Sropriate. Deviations from tb.e City's program
shall be disclosed in the Proposal. If the Proposal is accepted by the City, the parties shall then execute the Part 2
Agreement. A modification to the Proposal before execution of the Part 2 Agreement shall be recorded in writing as
an addendum and shall be identified in the Contract Documents of the Part 2 Agreement.
1.4 ADDITIONAL SERVICES
1.4.1 The Additional Services described under this Paragraph 1.4 shall be provided .by the Design/Builder
paid for by the City if authorized or confirmed in writing by the City.
1.4.2
are:
Making revisions in the Preliminary Design Documents, budget or other documents when such revisions
1. inconsistent with approvals or instructions previously given by the City, including revisions made necessary by
adjustments in the City's program or Project budget.
2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such
documents; or
3. due to changes required as a result of the City's failure to render decisions in a timely manner.
1.4.3 Providing more extensive programmatic criteria than that furnished by the City as described in Paragraph
2.1. When aftthorized, the Design/Builder shall provide processional services to assist the City in the preparation of
the program. Programming services may consist of:
1. consulting' with the City and other persons or entities not designated in this Part 1 Agreement to define the
program requirements of the Project and to review the understanding of such requirements with the City;
2. documentation of the applicable requirements necessary for the various Project functions or operations;
3. providing a review and analysis of the functional and organizational relationships, requirements, and objectives
for the Project;
4. setting forth a written program of requirements for the City's approval which summarizes the City's objectives,
schedule, constraints, and criteria.
1.4.4 Providing £mancial feasibility or other special studies.
1.4.5 Providing planning surveys, site evaluations or comparative studies of prospective sites.
1.4.6 Providing special surveys, environmental studies, and submissions required for approvals of governmental
authorities or others having jurisdiction over the Project.
1.4.7 Providing services relative to future facilities, svstems and equipment.
1.4.8 Providing services at the City's specific request to perform detailed investigations of existing conditions or
facilities or to make measured drawings thereof.
1.4.9. Providing services at the City's specific request to verify the accuracy of drawings or other information
furnished by the City.
1.4.10 Coordinating services in connection with the work of separate persons or entities retained by the City,
subsequent to the execution of this Part 1 Agreement.
1.4.11 Providing analyses of owning and operating costs.
1.4.12 Providing interior designs and other similar services required for or in connection with the selection,
procurement or installation of furniture, furnishings and related equipment.
1.4.13 Providing services for planning tenant or rental spaces.
1.4.14 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of
existing facilities.
ARTICLE 2
CITY
2.1 RESPONSIBILITIES
2.1.1 The City shall provide full information in a timely manner regarding requirements for the Project, including
a written program which shall set forth the City's objectives, schedule, constraints and criteria.
2.1.2 The City shall establish and update an overall budget for the Project, including reasonable contingencies.
This budget shall not constitute the contract sum.
2.1.3 The City shall designate a representative authorized to act on the City's behalf with respect to the Project.
The City or such authorized representative shall render decisions in a timely manner pertaining to documents
submitted by the Design/Builder in order to avoid unreasonable delay in the orderly and sequential progess of the
Design/Builder's services. The City may obtain independent review of the documents by a separate architect,
engineer, contractor or cost estimator under contract to or employed by the City. Such independent review shall be
undertaken at the City's expense in a timely manner and shall not delay the orderly progress 0fthe Design/Builder's
services.
2.1.4 The City shall furnish surveys describing physical characteristics, legal limitations and utility locations for
the ske of the Project, and a written legal description of the site. The surveys and legal information shall include, as
applicable, grades and lines of streets, alleys, pavements, and adjoining property and structures; adjacent drainage;
rights-of-way, restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining
to existing buildings, other improvements and trees; and information concerning available utility services.and lines,
both public and private, above and below grade, including inverts and depths. All the information on the survey
shall be referenced ro a Project benchmark.
2.1.5 The City shall furnish the services of geotechnical engineers when such services are stipulated in this Part 1
Agreement, or deemed reasonably necessary by the Design/Builder. Such services may include but are not limited
to test borings, test pks, determinations of soil bearing values, percolation tests, evaluations of hazardous materials,
ground corrosion and resistivity tests, and necessary operations for anticipating subsoil conditions. The services of
geotechnical engineer(s) or other consultants shall include preparation and submission of all appropriate reports and
professional recommendations.
2.1.6 The City, shall disclose, ro the extent lcno~vn to the City, the results and reports of prior tests, inspections or
investigations conducted for the Project involving: structural or mechanical systems; chemical, air, and water
pollution; hazardous materials; or other environmental and subsurface conditions. The City shall disclose ali
information known to the City regarding the presence of pollutants at the Project's site.
2.1.7 The City shall furnish all legal, accounting and insurance counseling services as may be necessary at any
time for the Project, including such auditing services as the City may require to verify the Design/Builder's
Applications for Payn2ent.
2.1.8 The City shall promptly obtain easements, zoning variances and legal authorizations regarding site
utilization where essential to the execution of the City's program.
2.1.9 Those services, information, surveys and reports required by Paragraphs 2.1.4 through 2.1.8 which are
within the City's control shall be furnished at the City's expense, and the Design/Builder shall be entitled to
reasonably rely upon the accuracy and completeness thereof consistent with Design/Builder's sound professional
judgment, except to the extent the City advises the Design/Builder to the contrary in writing.
2.1.10 The City shall communicate with persons or entities employed or retained by the Design/Builder through
the Design/Builder, unless otherwise directed by the Design/Builder.
ARTICLE 3
OWNERSHIP AND USE OF
DOCUMENTS AND ELECTRONIC DATA
3.1. The copies or other tangible embodiments of all design materials, whether or not such materials are subject to
intellectual property protection, including but not limited to documents, shop drasvings, computer programs developed
for the Project or if such programs are not the property of DesigrdBuilders the results of the use of them by
Design/Builder, data, plans, drawings, sketches, illustrations, specifications, descriptions, models, the Design
Documents, as-built documents and any other documents developed, prepared, furnished, delivered or required to be
delivered by the Design/Builder to City under the Contract Documents (collectively "Design Materials") shall be and
remain the property of the City whether or not the Project or Work is commenced or completed; provided, however,
that City makes payment for the documents in accordance with the Contract Documents. During the term of the
Ageement, the Design/Builder shall be responsible for any loss or damage to the Design Materials,' while the
Materials are in the possession of the Design/Builder or any of its Subcontractors, and any such Design Materials lost
or damaged shall be replaced or restored at the Design/Builder's expense. The intellectual property rights, if any, to
the contents of or concepts embodied in the Design Materials shall belong to the Design/Builder or its Design
Subcontractors in accordance with their contractual relationship and may be copyrighted by them h~ the United States
or in any other country, or be subject to any other intellectual property protection.
3.2. As ro those Design Materials subject to copyright or as to which patent or trademark, or any other form 6f
intellectual property protection has been, is or will be obtained, the Design/Builder grants m City as of the date that
the Design Materials are delivered or required to be delivered to the City, a world-wide, paid-up, nonexclusive,
nontransferable (except as provided) license for the term of intellectual property protection, for the City to use,
reproduce and have reproduced, display and allow others to display and to publish and allow others to publish, in any
manner, at any time and as often as it desires, with or without compensation to the Design/Builder or any third parry
subject m the f6Ilowing restrictions: (a) All copyright and other intellectual proprietary rights in or relating m any of
the Design Materials, shall remain the property of the Design/Builder or Design Subcontractor whether or not the
Project is constructed. It is understood that, except as provided in this paragraph, the Design/Builder and Design
Subcontractor shall have the right to use any detail, parr, concept or system(s) shown on, specified in, or inferable
from the Design Materials on any other project and to retain copies for the Design/Builder's or Design
Subcontractor's future use; (b) City shall not, without prior written consent of the Design/Builder or Design
Subcontractor use Design Materials or documents, in whole or in parr, for the construction of any other pro, iect. If,
however, City agrees to indemnify the City of the intellectual property rights against liability arising from the misuse
or incorrect use of Design Materials by City, City shall be entitled to, at no additional cost to the City, use such
materials and documents for additions, improvements, changes or alterations to the Project after completion. If
Design, Builder is in default under this Contract and the.Contract is terminated, City shall be entitled to use the Desian
Materials ~or completion of the Project by others without additional compensation, or a release, indemnification or
other action by City; (c) Any reproduction of the Design Materials or part of them shall be faithful and accurate to the
original and of good quality; (d) City shall not remove or alter, and shall reproduce and prominently display on all
copies made by City, the copyright notice and other proprietary legends appearing on the Design Materials when
delivered to City. The restrictions set forth in (c) and (d) above shall be imposed by City on any third party to whom
the City allows to display or publish the Design Materials.
3.3. It is understood that City considers the Project's aggregate architectural expression (that is, the overall
combination of the Project's visually apparent design features) and any distinctive individual features, to be unique and
of commercial value, and the Design/Builder and ks Design Subcontractors agree not to design or build, or allow
other third parties the use of the Design Materials to design or build another structure(s) having a substantially sinailar
architectural expression so that an average person would relate the structure(s) to the Project. Design/Builder and its
Design Subcontractors shall, however, be free to use individual features from the Project or combinations of features
in other projects, so long as the Design/Builder complies with the first sentence of this paragraph. Design/Builder shall
include this provision in its contracts with its Design Subcontractors and provide copies of these agreements to City.
3.4. As of the Date of Substantial Completion of the Project, or in the event of termination of the Agreement,
Design/Builder shall rtwn over to City any of the Design Materials referred to above which have not yet been
submitted to City. Design/Builder shall submit the Design Materials to City within ten days of the Date of Substantial
Completion, or date of termination. In the event of the failure by Design/Builder to make such delivery as provided
above, Design/Builder shall pay City any damages City may sustain from the failure.
ARTICLE 4
TIME
4.1 Upon the request of the City, the Design/Builder shall prepare a schedule for the performance of the Basic
and Additional Services which shall not exceed the established time limits and shall include allowances for periods
of time required for the City's review and for approval of submissions by authorities having jurisdiction over the
Project.
4.2 If the Design/Builder is delayed in the performance of services under this Part 1 Agreement through no
fault of the Design/Builder, any applicable schedule shall be equitably adjusted.
4.3 When any period of true 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 omittedffom the computation.
4.4 A consecutive calendar day oftv~enty~four hours measured from midnight to the next midnight shall constitute
a day. A working day is any day; Monday throug~h Friday of each week, also called business day.
5.1 Indemnification:
ARTICLE 5
INDEMNIFICATION AND INSURANCE
The Desigrv'Builder agrees to indemnify and hold harmless the City, its Officers, employees, insurers, and self-h~surance
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 that
such injury, loss, or damage is caused in Whole or in p_aA by, or is claimed to be caused in whole or in part by, any
negligent act, omission, or error, or ~villful misconduct of the Design/Builder, any Subcontractor of the Design/Builder,
or any officer, employee, representative, or agent of the Design/Builder or of any Subcontractor of the Design/Builder
Professional. The Design/Builder agrees to investigate, handle, respond to, and provide defense for and defend against,
any such liability, claims or demands at the sole expense of the DesignfBuilder Professional., The Design/Builder also
agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any
such liability, claims, or demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment of
a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in parr by the act, omission, or
other fauk of the City, its officers, or its employees, the City shall reimburse the Design/Builder for the portion of the
judgment attributable to such act, omission, or other fauk of the City, its officers~ or employees.
5. 2' Design/Bttilder's Insurance:
5.2.1. The Design/Builder agrees to procure and maintain, at ks own expense, a policy or policies of insurance
sufficient to insure against all liability, claims, demands, and other obligations assumed by the Design/Builder pursuant
to Section 5.1 above. Such insurance shall be in addkion to any other insurance requkements imposed by this contract or
by law. The Design/Builder shall not be relieved of any liability, claims, demands, or other obligations' assumed pursuant
to Section 5.1 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or
maintain insurance, in sufficient amotmts, duration, or types.
5.2.2. Design/Builder shall procure and maintain, and shall cause any Subcontractor of the Design/Builder to procure
and maintain, the minimtim insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions
do not set forth minimm~q insurance coverage, then the minimum coverage shall be as set forth below. Such coverage
Shall be procured and maintained with forms and insurance acceptable m City. All coverage shall be continuously
maintained to cover all liability, claims, demands, and other obligations assumed by the Design/Builder pursuant to
Section 5.1 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.
5.2.2.1. V/or/onen'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
mimmum limits of ONE HUNDRED THOUSAND DOLLARS ($ 100,000.00) for each accident, FIVE
HUNDRED THQUSAND DOLLARS ($500,000.00) disease - policy limit, and ONE HUNDRED
THOUSAND DOLLARS ($ 100,000.00) disease - each employee. Evidence of qualified self-insured statuS
may be substituted for the Workmen's' Compensation requirements of this paragraph.
5.2.2.2. 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 ro all premises and operations. The policy shall include coverage for bodily injury,
broad form property dm2age (including completed operations), personal injury (including coverage for
contractual and employee acts), blanket contractual, independent Design/Builders, products, and completed
operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy
shall contain a severability of interests provision.
5.2.2.3. 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 Design/Builder's owned, hired and non-
owned vehicles assigned to or used in performance of the services. The policy shall contain a severabitity of
interests provision. If the Desi~./Builder has no owned automobiles, the requirements of this Section 5.4.2.3
shall be met by each employee of the DesigrffBuilderproviding services to the City under this contract.
5.2.2.4. Professional Liability Insurance with minimum limits of not less than FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) each claim and in the aggregate.
5.2.3. Except for any Professional Liability and Worker's ~ompensation 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 requ/red 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 Design/Builder. No additional insured endorsement to the
policy required above shall contain any exclusion for bodily injury or property damage arising fi'om completed
operations. The DesigWBuilder shall be solely responsible for any deductible losses under ans> policy required above.
5.2.4. The certificate of insurance provided by the City of Aspen shall be completed by the Design/Builder's insurance
agent as evidence that policies providing the retluired 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 shah 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.
5.2.5 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 Design/Builder. 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.
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. The insurance companies issuing the
policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for
assessments under any form of policy.
Any and alt deductibles in the above-described insurance policies shall be assumed by and be for the mount of,
and ar the sole risk of the Proposer. Any and all deductibles in the above-described insurance policies shall be
assumed by and be for the amount o]t; 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?Location of operations shall be: "All operations and locations at which work in connection with'
the referenced project is done. ~'
Certificates of Ya~surance for all renewal policies shall be delivered to the City at least fifteen (15) days prior ro a
policy's expiration date except for any policy expiring on the expiration date of this agreement or thereafter.
5.2.6. Failure on the part of the Desi=on/Builder to procure or maintain policies providing the required coverage,
conditions, and minimmn limits shall constitute a material breach of contract upon which City may immediately
terminate this conn'act, 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
Design/Builder to City upon demand, or City may offset the cost of the premiums against moneys due to Design/Builder
fi'om City.
5.2.7. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto.
5.3 City's Liability tnsurance:
5.3.1. 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 Deparmaent and are available to Design/Builder for inspection during
normal business hours. City makes no representations whatsoever with respect to specific coverage offered by CIRSA.
City shall provide Design/Builder reasonable notice of any changes in its membership or participation in CIRSA.
5.3.2. 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 I~zununity Act, Section 24-10-101 et seq., C.tLS., as from time to t/me amended, or otherwise
available to City, its o~cers, or its employees. Further, nothing in the Contract Documents shall be construed or
interpreted to requh'e or provide for indemnification of the Design/Builder 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
MISCELLANEOUS PROVISIONS
6.1 The City and the Design/Builder, respectively, bind themselves, their parmers, successors, assigns and
legal representatives to the other party to this Part 1 Agreement and to the parmers, successors and assigns of such
other party with respect to all'covenants of this Part 1 Agreement. Neither the City nor the Design/Builder shall
assign this Pm-t 1 A~m'eement without the written consent of the other.
6.2 Unless otherwise provided, neither the design for not the cost of remediation of hazardous materials shall
be the responsibility of the Design/Builder.
6.3 This Part 1 Agreeinent represents the entire and integrated agreement between the City and the
Design/Builder and supersedes ali prior negotiations, representations or agreements, either written or oral. This Part
1 Agreement may be amended only by written instrument signed by both the City and the Design/Builder.
6.4 Prior to the termination of the services of the Architect or any other design professional designated in this
Part 1 Agreement, the Design/Builder shall identify to the City in writing another architect or design professional
with respect ro whom the City has not reasonable objection, who will provide the services originally to have been
provided by the Architect or other design professional whose services are being terminated.
6.5 Nondiscrimination
During the performance of this Contract, the Design/Builder agrees as follows:
6.5.1. The Design/Builder 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 Design/Builder will take affn'mative 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 lhnited to, the following: employment, upgrading, demotion or transfer; recruitment
or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Design/Builder agrees to post in conspicuous places, available m employees and
applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
6.5.2. The DesigrdBuild~r, with regard to the Work performed by it during the Contract, shall not
discrkninate 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.
6.5.3. The Design/Builder will, in all solicitations or advertisements for employees placed by or on behalf of
the Design/Builder, 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.
6.5.4: In all solicitations either by competitive bidding or negotiation made by the Design/Builder 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 Design/Builder 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.
6.5.5. The Design/Builder 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 un,ion
or workers' representatives of the Design/Builder's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
6.6 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.
6. 7 General:
Should the City or the Design/Builder 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 gu'st 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.
6.7.1. 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 Design/Builder by the General Conditions, and all of the fights 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
prowsions 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 they apply.
All representations, warranties and guarantees made in the Contract Documents will survive f'mal payment and
termination or completion of the Agreement.
6.8 Independent Contractor Stattts:
It 'is expressly ackmowledged and understood by the parties that nothing in this agreement shall resuk in, or be construed
as establishing an employment relationship. The Design/Builder shall be, and shall 13erform as, an independent contractor
who agrees to use his best eff(~rts to provide the Work on behalf of the City. No agent, employee, or servant of the
Design/Builder 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 Design/Builder. None of the benefits provided by the Cfty to its employees iricluding, but not limited to,
worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or
servants of the Design/Brtilder. The Design/Builder shall be solely and entirely responsible for its acts and for the acts of
the Design/Builder's agents, employees, servantS'and Subcontractors during the performance of the Agreement.
THE DESIGN/BUILDER, 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 AGREEMENT.
6.9 ProAibited Interest:
No member, officer, or employee of the City of Aspen shall have any interest, direct or indirect, in.this Agreement or the
proceeds thereof.
6.10 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest:
The Design/Builder warr~ts that no person or selling agency has been employed or retained ro solicit or secure this
Agreement upon an agreement or m~derstanding for a commission, percentage, brokerage, or contingency fee, excepting
bona fide employees or bona fide established commercial or selling agencies maintained by the Desi~vBuilder for the
purpose of securing business.
6.10.1. The Design/Builder agrees not to give any employee or former employee of the City a gratuity or any offer of
employment in com~ection with any decision, approval, disapproval, recommendation, preparation of any part of a
program requirement or a purchase request, ini2uencing 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, clafl:a or controversy, or other particular matter, pertaining to this Agreement or to any
solicitation or proposal therefor.
6.10.2. It shall be a material breach of the Agreement for any payment, gratuity, or offer of employment to be made by
or on behalf of a Subcontractor under a Agreement to the prime Design/Builder or higher tier Subcontractor or any
person associated therewith, as an inducement for the award of a Subcontract or order. The Design/Builder is prohibited
from inducing, by any means, any person employed under this Agreement to give up any parr of the compensation to
which he/she is otherwise entitled. The Desigr~Builder shall comply with all applicable local, state and federal "anti-
kickback" statutes or regulations.
6.11 Payments Subject to Annual AtJpropriations:
If the Agreement a~varded extends beyond the calendar year, nothing herein shall be construed as an obligation by the
City beyond any amounts that may be, fi'om 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 Design/Builder, 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.
6.12 Design/Builder Acceptance:
6.12.1. The acceptance by the Design/Builder of any payment made on the final completion of Work under these
General Conditions, or o£ any final payment due on termination, shall constitute a full and complete release of the City
5om any and all claims, demands and causes of action whatsoever which the Design/Builder, has or may have against
the City under the provisions of these Contract Documents.
6.12.2. No action shah be maintained by Design/Builder, its successors or assigns, against the City or the Engineer on
any claims based upon or arising out of this Agreement or our of anything done in connection with this Agreement
unless such action shall be commenced within 180 days after the date approval of the final progress payment hereunder,
or within 180 days of the termination of this Agreement.
6.13 Successors aud Assigns
This Agreement and all of the covenants hereof shall inure to the benefit of and be bidding upon the City and the
Design/Builder respectively and their agents, representatives, employees, successors, assigns and legal representatives.
Neither the City nor the Design/Builder shall have the right to assign, transfer or sublet his or her interest or obligations
hereunder without the written consent of the other party.
6.14 Third Parties
This Agreement does not and shall not be deemed or construed to confer upon or grant to any third parry or parries,
except to pm-ties to whom the Design/Builder of the City may assign this Agreement in accordance with the specific
written consent, any rights to claina damages or to bring suit, action or other proceeding against either the City or the
Design/Builder because of any breach hereof or because of any of the terms, covenants, agreements 'or conditions herein
contained.
6.15 Waiver
No waiver of defmdt by either patty of any tenus, 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 parry.
6.16 Contract lYlade in Colorado
The Parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so
construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
6.17 Attorney's Fees
In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be
entitled to its costs and reasonable attorney's fees.
6.18 Waiver of Presumption
This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parries agree that
no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of
the pm'ties in the negotiation, review or drafting of this Agreement.
6.19 Severability Clause:
If any provision of the Agreement is subsequently declared by legislati, ve or judicial authority to be unlawful,
unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America or the
State of Colorado, all other provisions of the Agreement shall remain in full force and effect.
ARTICLE 7
TERMINATION OF THE AGREEMENT
7.1 This Part 1 Agreement may be terminated bv either party upon seven (7) days' written notice should the
other parry fail to perform substantially in accordance with its terms through no fault of the party initiating the
termination.
7.2 This Part 1 Agreement may be terminated by the City without cause upon at least (7) days' written notice to
the Design/Builder.
7.3 In the event of termination not the fault of the Design/builder, th~ Design/Builder shall be compensated for
services performed to the terrnination date, together with Reimbursable Expenses then due' and Termination
Expenses. Termination Expenses are expenses directly attributable ro termination, including a reasonable amount
for overhead and profit, for which the Design/Builder is not otherwise compensated under this Part 1 Agreement.
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