HomeMy WebLinkAboutresolution.council.026-00 RESOLUTION #26
(Series of 2000)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND COLOMBO INTERNATIONAL INC. SETTING
FORTH THE TERMS AND CONDITIONS REGARDING DESIGN AND
CONSTRUCTION OF THE LOBBY BAR AT THE WHEELER OPERA
HOUSE AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Colombo International Inc., a copy of
which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and Colombo International Inc. regarding
design and construction of the lobby bar at the Wheeler Opera House, a copy of
which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager of the City of Aspen to execute said contract on behalf of the City
of Aspen.
Dated: ~~ /~/ ~
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that
the foregoing is a true and accurate copy of that r.esolution at. opted by the City
Council of the city of Aspen, Colorado, at a meetmg held 7P/,~d- ~/-'~
,2000.
Kathff/n'~'. l~och, City Clerk
PART ONE AGREEMENT FOR DESIGN/BUILD PROJECT
THIS AGREEMENT, made and entered into on April 1, 2000, by and between the CITY OF
ASPEN. Colorado hereinafter called the "City", and COLOMBO INTERNATIONAL, INC.,
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 Bar
Renovation. 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 canvas~ has determined and declared that it is in the City's
best interest to award to the Design/Builder this Part I 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 NINE THOUSAND
DOLLARS ($9,000.00) or as shown on the Proposal.
CC3-971.doc "CC1 Page
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 inclucied 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 1 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 the City may
assign this Part 1 Agreement in accordance with the specific wdtten 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 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 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 shall 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
CC3-971.doc **CC1 Page 2
shall adse for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of this Part 1 Agreement.
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 1 Agreement on the
date first above written.
ATTESTED BY: CITY OF AS ~/~-d~COLORADO
RECOMMENDED FOR APPROVAL: / APPROVED AS TO FORM:
'/,"City Engineeri'h~ Department Ci~n~/
ATTESTED BY: ~,
DESIGN/BUILDER:
By:~>
Title:
Note: Certification of incorporation shall be executed if Design/Builder is a Corporation. If a
partnership, the Agreement shall be signed by a Principal and indicate title.
CC3-971.doc **CC1 Page 3
CLARIFICATION OF THE TERN "DESIGN/BUILD"
IN THE CITY'S DESIGN/BUILD AGREEMENTS AND
CONTRACT DOCUMENTS
FROM: City of Aspen, Engineering Department
DATE: March 20, 2000
This document was issued to clarify the requirements of the term
"Design/Build" or "Design-Build" in the City's municipal contracting
practices. Under this form of contracting practice the design-build firm has
the following responsibilities:
1. To develop and deliver a complete set of technical design details,
drawings, reports and specifications for review and approval by the
City's sponsoring department and the Engineering department prior to
construction or installation of any component of a design/build project.
2. To remove and dispose any component of a project installed or
constructed prior to review and approval by the Engineering
Department or it's consultant(s) through a formal submittal of a
professional technical design, from the design/build firm. All rejected
work or installation must be removed and disposed immediately at
contractor's cost.
DESiGN-BUILD-O01
CITY OF ASPEN, COLORADO
Engineering Department
GENERAL CONDITIONS FOR
PART ONE AGREEMENT
OF DESIGN/BUILD PROJECTS
(Version DBI-97-4)
TABLE OF CONTENTS
Arfide 1 - Dealgw~Builder.
1.1. Services .................................................................................................................................................................................................. 2
1.2. Responsibilities ................................................................................................................................................................................................ 2
1.3. Basic Services .................................................................................................................................................................................................. 3
1~4. Additional Services .......................................................................................................................................................................................... 3
Article 2 - City.
2,1. Responsibili~ias ............................................................................................................................................................................................ 4
Article 3- Ownership and Use of Docnment~ and Electronic Data,
Article 4 - Time.
Article 5- Indemnification and Insurance
5.1 Indemnification ................................................................................................................................................................................................ 7
5.2. Design/Builder's Insurance ......................................................................................................................................................................... -
5.3. Ciys Liability Insurance ................................................................................................................................................................................. 9
Article 6 - Miscellaneous Provisions.
6.5. Nondiscrimination ................................................................................................................................................................................. 9
6.6. Giving Notice .................................................................................................................................................................. 10
6.7. General .................................................................................................................................................................. 10
6.8 Independent Contractor Status ............................................................................................................................................................. 11
6.9 Prohibited Interest ................................................................................................................................................... II
6.10 Warranties Against Conlingent Fees, Oratuitias, Kickbacks and Conflict of Interast ...................................................................... 11
6.11 Paymant Subject to Annual Appropriadons ............................................................................................................................. 11
6.12 Dasi~jVBuilder Aceeptance .......................................................................................................................................... 12
6.13 Successors and Asalgns .......................................................................................................................................................... 12
6.14 Third parties ..................................................................................................................................................................... 12
6.15 Waiver ............................................................................................................................................................ 12
6.16 Contract Made in Colorado .................................................................................................................................................. 12
6.17 Attorneys' Fees ............................................................................................................................................................... I2
6.18 Waiver of Presumption ........................................................................................................................................................ 12
6.19 Severability Clause ............................................................................................................................................................... I2
Article 7 - Terminafion of Agreemem
Page: 1
' rl
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 ofcunfiict or inconsistency among the Contract Documents, the order of precedence set forth in the Design/Build
Agreement 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, provided 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 part or term of the Contract Documents.
ARTICLE 1
DESIGN/BUILDER
1.1 SERVICES
LI.I Preliminary design, budget, and schedule comprise the services required to accomplish the preparation and
submission of the Design/Builder's Proposal as well as the preparation and submission of any modifications to the
Proposal prior to execution of the Part 2 Agreement.
1.2 RESPONSIBILITIES
1.2.1. Design services required by this Part 1 Agreement shall be performed by qualified architects and other
design professionals, The contractual obligations of such professional persons or entities are undertaken and
performed in the interest of the 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. Thase agreements, including financial arrangements with
respect m this Project, shall be promptly and fully disclosed to the City upon request.
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, inaluding 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.
Page: 2
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 shall 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 reqmrement 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 alternative approaches to design and conslxuction of the
Project.
1.3.5 The Design/Builder shall submit to the City a Proposal, including the completed Preliminary Design
Documents, a statemant 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 of the Project as may be appropriate. Deviations from the 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 and
paid for by the City if authorized or confirmed in writing by the City.
1.4.2 Making revistons m the Preliminary Design Documents, budget or other documents when such revisions
are:
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 revismn 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 authorized, 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 ofrequiremants for the City's approval which summarizes the City's objectives,
schedule, constraints, and criteria.
1.4.4 Providing financial feasibility or other special studies.
1.4.5 Providing planning surveys, site evaluations or comparative studies of prospective sites.
Page:
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, systems 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 m 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 progress 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 of the Design/Builder's
services.
2.1.4 The City shall furnish surveys describing physical characteristics, legal limitations and utility locations for
the site 0fthe 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 dra'mage;
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 to a Project benchmark.
Page: 4
2.1.5 The City shall furnish the services of geoteclmical 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 pits, 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, to the extent known 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 all
information known to the City regarding the presence of polhitants 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 requtre m verify the Design/Builder's
Applications for Payment.
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 m
reasonably rely upon the accuracy and completeness thereof consistent with Design/Bnilder'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 communlcate 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
DOCUMI~NTS AND ELECTRONIC DATA
3.1. ]'he copies or other tangible embodiments of all deff~gn materials, whether or not such materials are subject
to intellectual property protection, including but not limited to documents, shop drawings, computer programs
devehiped for the Project or if such programs are not the property of Design/Builders the results o~ 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, finnished, 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 a~ordance with the Contract Documents. During the term of the
Agreement, 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 acx:ordance with their contractual relationship and may be copyrighted by them in the United States
or in any other country, or be subject to any other intellectual property protection.
3.2, As to those Design Materials subject to copyright or as to which patent or trademark, or any other form of
inteilecmal property protection has been, is or will be obtained, the Design/Builder grants to City as of the date that
the Design Materials are delivered or required to be delivered to the City, a worid-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 Desi~p~Bnilder or any third party
Page:
subject to the following restrictions: (a) All copyright and other intellectual proprieta~ rights in or relating to 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 righi to use any detail, part, concept or system(s) shown on, specified in. or inferable
from the Design Materials on any other projec~ and to retain copies for the Desig~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 pan, for the construction of any other project. If,
however, City agrees m 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 m, 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 m use the
Design Materials for completion of the Project by others without additional compensation, or a release.
indemnification or other action by City; (c) Any reproduction of the Design Materials or part of them shall be faithful
and accurate to the original and of good quality; (d) City shall not remove or alter, and shall reproduce and
prominently display on all copies made by City, the copyright notice and other proprietary legends appearing on the
Design Materials when dalivered'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, m be unique
and of commercial value, and the Design/Builder and its Destgn Subeontractom agree not to design or build, or allow
other third parties the use of the Design Materials to design or build another structure(s) b4tving a substantially similar
architectural expression so that an average person would relate the strucmre(s) to the Project. Design/Builder and its
Design Subcontractors shall, however, be free to use individual features from the Project or comb'mations of features
in other projects, so long as the Design/Builder complies with the first sentence of this paragraph. Design/Builder
shall include this provismn 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 mm over to City any of the Design Materials referred m above which have no~ yet been
submitted to City. Design/Builder shall submit the Design Matefmls 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.
,1.2 If the Design/Builder is delayed in the performance of services under this Part I Agreement through no
fault of the Design/Builder, any applicable schedule shall be equitably adjusted.
4.3 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.
4.4 A consecutive calendar day of twenty-four hours measured fi'om 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.
ARTICLE 5
P~e:6
INDEMNIFICATION AND INSURANCE
$.1 Indemnification:
The Design/Builder agrees to indemnify end hold harmless the City, its officers, employees, insurers, end self-insurence
pool, from end against all liability, claims, end demends, 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 eny
other loss of eny kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent
that such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the
act, omission, enter, professional error, mistake, negligence, or other fault of the Design/Builder, any Subcontractor of
the Design/Builder, or eny officer, employee, representative, or agent of the DasignfBuilder or of eny Subcontractor of
the Design/Builder, or which arises out of eny workmen's compensation claim of eny employee of the Design/Builder
or of eny employee of eny Subcontractor of the Design/Builder. The Design/Builder agrees to investigate, hendle,
respond to, and provide defense for end defend against, eny such liability, claims or demends at the sole expense of the
Design/Builder, 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, eny such liability, claims, or damends. The Design/Builder also agrees to bear all other
costs end expenses related thereto, including cour~ costs end attorney fees, whether or not eny such liability, claims, or
demends alleged are groundless, false, or fraudulent, If it is determined by the final judgment of a court of competent
jurisdiction that such injury, loss, or damage was caused in whole or in part by the aet, omission, or other fault 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 fault of the City, its officers, or employees.
$.2 Design/Builder's Insurance:
5.2.1. The Design/Builder agrees to procure end maintain, at its own expense, a policy or policies of insurenc~
sufficient to insure against all liability, claims, demends, end other obligations assumed by the Design/Builder pursuent
to Section 5.1 above. Such insurence shall be in addition to eny other insurence requirements imposed by this contract
or by law. The Design/Builder shall not be relieved of eny liability, claims, demends, or other obligations assumed
pursuent to Section 5.1 above by reason of its failure to procure or maintain insurence, or by reason of its failure to
procure or maintain insurence in sufficient amounts, duration, or types.
5.2.2. Design/Builder shall procure end maintain, end shall cause eny Subcontractor of the Design/Builder to procure
end maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions
do not set forth minimum insurence coverage, then the minimum coverage shall be as set forth below. Such coverage
shall be procured end maintained with forms end insurence acceptable to City. All coverage shall be continuously
maintained to cover all liability, claims, demands, end other obligations assumed by the Design/Builder pursuant to
Section 5.1 above. In the case of eny claims-made policy, the necessary re~oaetive dates end extended reporting
periods shall be procured to maintain such continuous coverage.
5.2.2.1. ~orkmen's Compensation insurence to cover obligations imposed by applicable laws for eny
employee engaged in the performence of work under this contract, end Employers' Liability insurence with
minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, end FIVE HLrNDRED
THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status
may be substituted for the Workmen's Compensation requirements of this paragraph.
5.2.2.2. Commercial General Liability insurence with midlmmn combined single limits of ONE MILLION
DOLLARS ($1,000,000.00) each occurrence end ONE MILLION DOLLARS ($1,000,000.00) aggregate,
The policy shall be applicable to all premises end operations. The policy shall include coverage for bodily
injury, broad form property damage (including completed operations), personal injury (including coverage for
contractual end employee acts), blanket contractual, independent Design/Builders, products, and completed
operations. The policy shall include coverage for explosion, collapse, end nndergronnd hazards. The policy
shall contain a sevembility of interests provision.
Page: 7
~ 5.2.2.3. Comprehensive Automobile £iability insurance with minunum 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 m each Dasign/Builder's owned, hired
and non-owned vehicles assigned to or used in performance of the services, the policy shall contain a
sevembility of interests provision. If the Design/Builder has no owned automobiles, the requirements of this
Section 5.4.2.3 shall be met by each employee of the Design/Builder providing services to the City under this
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 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
employeas, 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 from completed operations, rhe
Design/Builder shall be solaly responsible for any deductible losses under any policy required above.
5.2.4. The certificate of insurance provided by the City of Aspen shall be completed by the Design/Builders
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 Aspan 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 givan to the City of Aspan.
5.2.5 In addition, these Certificates of Insurance shall contain the foliowing clauses:
Underwriters and issuers shali 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.
The insttrance 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.
Location of operations shall be: "All operations and locations at which work in connection with the referenced
project is done."
Certificates of Insurance for all renewal policies shall be delivered to the City at least fifteen (15) days prior to
a policy's expiration date except for any policy expiring on the expiration date of this agreement or thereatter.
5.2.6. Failure on the part of the Design/Buildcr 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
Design/Builder to City upon demand, or City may offset the cost of the premiums against moneys due to
Design/Builder from City.
Page: 8
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 Insurance:
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 tile CIRSA Property/Casualty Pool. Copies of the CIRSA policies and
manual are kept at the City of Aspen Finance Department 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 C1RSA.
5.3.2. rite pa:ties 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 bom time to time mended, 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 indeumification 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, thek partners, successors, assigns and
legal representatives to the other party to this Pan 1 Agreement and to the panners, 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 Part 1 Agreement 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 Agreement represents file entire and integrated agreement between the City and the
Design/Builder and supersedes all 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 I Agreement, the Design/Builder shall identify to the City in writing another architect or design professional
with respect to 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 wiil 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 em veteran. The Design/Builder 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 wansfer:
recruitment or recruitment advertising; layoff or termination; rotes of pay or other forms of compensation; and selection
Page: 9
for training, including apprenticeship, The Design/Builder agrees to post in conspicuous places, available to employees
and applicants for employment, notices to be provided setting forth the prowsinns of this nondiscrimination clause.
6.5.2. The Design/Builder, with regard to the Work performed by it during the Contract, shall not
discriminate on the grounds of race, color, religion, sex, national or/gm, sexual orientation, age, marital stares, being
handicapped, a disadvantaged person, or a disabled or Vier Nam era veteran in the select/on 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/Bdildar 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 disadventaged person, or a disabled or Vier Nam em veteran.
6.5.5. The DesigrffBuilder will send to each labor unmn or representative of workers, with which it has a
collective bargaining agreement or other contract or understanding, a notice m be provided advising the said labor
aninn or workers' representatives of the Design/Builder's commitments under this section, and shall post copies of the
notice in conspmuous places available to employees end 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 ofeny error, omissmn or
act of the other party or of any of the other party's employees or agents or others for whose acts the other paO:y is legally
liable, claim will be made in writing to the other party within a reasonable time of the fa'st observance of such injtay or
damage. The provisions ofthis paragraph shall not be consirued as a substitute for or a waiver ofthe provisions ofeny
applicable statute of limitations or repose.
6.7.1. The duties and obligations imposed by these General Conditions end the rights and remedies available
hereunder m the parties hereto, end, in particular but without limitation, the warranties, guarantees and obligations
imposed upon the Design/Builder by the General Conditions. end all of the fights and remedies available to the City
thereunder, are in addition to, end are not to be construed in any way as a limitation of, any rights end 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, end 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 end remedy
to which they apply. All representations, warranties and guarantees made in the Contract Documents will survive final
payment end termination or completion of the Agreement.
Page: 10
6.8 Independent Contractor Stat#s:
It is expressly acknowledged and understood by the patties that nothing in this agreement shall result in, or be construed
as estublishing an employment relationship. The Desigu/Builder shall be, and shall perform as, an independent
contractor who agrees to use h~s best efforts 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 Desigu/Builder. 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 fi.om the City to the
employees, agents or servants of the Desig~ffBuilder. 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 daring 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 Prohibitedlnterest:
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, Kickbaclrs and Conflict of Interest:
The Design/Builder 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 sailing agencies maintained by the
Design/Builder 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 connection with any decision, approval, disapproval, recommendation, preparation of any part of a
program reqnkemant or a purchase request, influencing the content of any specification or procurement standard,
rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request
for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement or to any
solicitation or proposal therefor.
6.10.Z 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 part of the compensation to
which he/she is otherwise entitled. The Design/Builder shall comply with ail applicable local, state and federal "anti-
kickback" statutes or regulations.
6.11 Payments Subject to Annual Appropriations:
If the Agreement awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the
City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood
that payment under any 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.
Page: 11
6.12 Design/Bullder Acceptanee:
6.12.1. The acceptance by the Desig~gBuilder 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
fi.om uny 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 shall be maintained by Design/Builder, its successors or assigns, against the City or the Engdneer on
any claims based upon or artsing out of this Agreement or out of anything done in connection with this ^greement
unless such action shall be commenced within 180 days after the date approval of the final progress payment hereundat,
or within 180 days of the termination of this Agreement.
6.13 Successors andAssigus
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 assig~ transfer or sublet his or her interest or obligaiions
hereunder without the written consent of the other party.
6.14 ThirdParties
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 Dasign/Butldar of the City may assign thSs Agreement in accordance with the specific
written consent, any fights 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 tile terms, covenants, agreements or conditions
herein contained.
6.15 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.
6.16 Contract Made in Colorado
The Parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so
construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
6.17 Attorney's Fees
In the event that legal action ts necessary to enforce any of the provislous of this Agreement, the prevailing party slm/1
be entitled to its costs and reasonable attorney's fees.
~18 Waiver of Presumption
This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that
no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status
of the parties in the negotiation, review or drafting of this Agreement
6.19 Severability Clause:
If any provtsion of the Agreemem 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 previsions of the Agreement shall remain in full force and effect.
Page: 12
ARTICLE 7
TERMINATION OF THE AGREEMENT
7.1 This Part 1 Agreement may be terminated by either party upon seven (7) days' written notice should the
other patty 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, the Design/Builder shall be compensated l'or
services performed to the termination date, together with Reimbursable Expenses then due and Termination
Expenses. Termination Expenses are expenses directly attributable to termination, incinding a reasonable amotmt
for overhead and profit, for which the Design/Builder is not otherwise compensated under this Part 1 Agreement.
Page: 13
PART TWO AGREEMENT FOR DESIGN/BUILD PROJECT
THIS AGREEMENT, made and entered into on April t, 2000, by and between the CITY OF
ASPEN, Colorado, hereinafter called the "City", and COLUMBO INTERNATIONAL, INC.,
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 describeri, 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 Bar
Renovation; 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 the Design/Builder to
be the most responsive proposer for the said Work and has duly awarded to the Design/Builder
a Part 2 Agreement therefore, for the sum or sums set forth herein;
NOW, THEREFORE, in consideration of the payments and Part 2 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 necessar~ 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 EIGHTY-ONE
THOUSAND DOLLARS ($81,000.00) or as shown in the proposal.
CC4-971.doc **CC2 Page 1
5. The term "Contract Documents" means and includes the documents listed in the
City of Aspen General Conditions for Design/Build Project and in the Special Conditions, if any.
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 2 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 2 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 the City may
assign this Part 2 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 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 Part 2 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 cs necessary to enforce any of the provisions of this
Part 2 Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's
fees.
13. This Part 2 Agreement was rewewed and accepted through the mutual efforts of
the parties hereto and the parties agree that no construction shall be made or presumption
CC4-971.doc **CC2 Page 2
PART TWO AGREEMENT FOR DESIGN/BUILD PROJECT
THIS AGREEMENT, made and entered into on' April ~1, 2000, by and between the CITY OF
ASPEN, Colorado, hereinafter called the "City", and COLUMBO INTERNATIONAL, INC.,
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 Bar
Renovation; 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 the Design/Builder to
be the most responsive proposer for the said Work and has duly awarded to the Design/Builder
a Part 2 Agreement therefore, for the sum or sums set forth herein:
NOW, THEREFORE, in consideration of the payments and Part 2 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 EIGHTY-ONE
THOUSAND DOLLARS ($81,000.00) or as shown in the proposal.
CC4-971.doc **CC2 Page
5. The term "Contract Documents" means and includes the documents listed in the
City of Aspen General Conditions for Design/Build Project and in the Special Conditions, if any.
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 2 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 2 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 the City may
assign this Part 2 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 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 Part 2 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 enfome any of the provisions of this
Part 2 Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's
fees.
13. This Part 2 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
CC4-971.dec **CC2 Page 2
shall adse for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of this Part 2 Agreement.
14. The undersigned representative of the Design/Builder, as an inducement to the
City to execute this Part 2 Agreement, represents that he/she is an authorized representative'of
the Design/Builder for the purposes of executing this Part 2 Agreement and that he/she has full
and complete authority to enter into this Part 2 Agreement for the terms and conditions
specified herein.
IN WITNESS WHEREOF, the parties agree hereto have executed this Part 2 Agreement on the
date first above written.
ATTESTED BY: CITY OF ASPEN, COLORADO
Title: ~----------f'Ft~ ~'~-/,3¢c~¢:~_
RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM:
City Engineering .Department City ~ttO~n~~
ATTESTED BY: ~
Title:~~.j;~
Note: Certification of Incorporation shall be executed if Design/Builder is a Corporation. If a
partnership, the Agreement shall be signed by a Principal and indicate title.
CC4-971,do6 **CC2 Page 3
City of Aspen
Two Part
Agreement
and
General Conditions For
Design/Build
Construction Contracts
{Version DB-971)
CITY OF ASPEN~ COLORADO
GENERAL INFORMATION FOR
TWO PART AGREEMENT
OF DESIGNfBUELD PROJECT
(Version DB-9%l)
"l'he Two Part Design/Build Agreement for construction projects consists of two separate
agreements (Part 1 and Part 2) and General Conditions related to each part. These agreement
documents are an integral part of the Contract Documents for the particular construction project
described there~
These agreement forms are intended to establish a contractual relationship between the City of
Aspen and a Design/Builder. Design/build is a process in which the City of Aspen contracts
directly with one entity that is to provide both design and construction services. The
Desig~ffBuilder's organization may take a variety of forms, such as a sole proprietorship, a
partnership, a joint venture, or a corporation. An architect or architectural firm may directly contract
to perform design/build, or alternatively may form a separate corporate entity or joint venture for
design/build, although these options are not explicitly stated in the document.
The City of Aspen's Design build agreement contains two separate, sequential agreements. Part 1
Agreement covers services for preliminary design and budgeting. The Part 2 Agreement covers
services for final design and construction. It is intended that the parties first enter into the Part 1
Agreement to determine the feasibility and the scope of the Project, and thereafter emer into the
Part 2 Agreement. Before the Part 1 Agreement is executed, the parties should reach substantial
agreement on the terms of the Part 2 Agreement, except for the scope of the Project and
compensation. Note that the parties may conclude their relationship after the Part 1 Agreement is
performed rather than continuing on the Part 2 Agreement.
CONTENTS
Part One Agreement for Design/Build Projects
General Conditions for Part One Agreement for Design/Build Projects
Part Two Agreement for Design/Build Projects
General Conditions for Part Two Agreement for Design/Build Projects