HomeMy WebLinkAboutresolution.council.083-05RESOLUTION # 83
(Series of 2005)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND B.T.E. CONCRETE SETTING FORTH THE
TERMS AND CONDITIONS REGARDING RIO GRANDE PARK1NG
GARAGE MAIN STAIRS REPLACEMENT AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and B.T.E. Concrete, 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 B.T.E. Concrete regarding Rio Grande
Parking Garage Main Stairs Replacement, 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 tree and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held October 24, 2005.
Kat~p~n S. Koch, City Clerk
PART ONE AGREEMENT FOR DESIGN/BUILD PROJECT
THIS AGREEMENT, made and entered into on 24 October 2005, by and between the CITY OF
ASPEN, Colorado, hereinafter called the "City", and B.T.E. Concrete, 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: Rio Grande Parking Garage Main
Stairs Replacement, 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 Sixteen Thousand
Dollars and Zero Cents ($16,000.00) or as shown on the Proposal.
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
CC3-971.doc **CC1 Page 1
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 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 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 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 p. revailing 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
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 1 Agreement.
CC3-971.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 1 Agreement on the
date first above written.
RECOMMENDED FOR APPROVAL:
Title: ~/~'"' ~
APPROVED AS TO FORM:
ATTESTED BY:
DESIGN/BUILDER:
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
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 duly sworn, did say that s/he is of
and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said instrument was signed
and sealed in behalf of said corporation by authority of its board of directors; and said deponent
acknowledged said instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above
written.
Notary Public
My commission expires:
Address
CC3-971.doc **CC1 Page 4
CITY OF ASPEN, COLORADO
GENERAL CONDITIONS FOR
PART ONE AGREEMENT
OF DESIGN/BUILD PROJECTS
(Version DBI~101)
TABLE OF CONTENTS
Article I - Design/Builder.
1.1. Services .................................................................................................................................................................................................. 2
INTRODUCTION
The Contract Documents are complementary, and what is requked by any one shall be as binding as ii'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 confrict 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 Aspan 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 recogniTed 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 extant that they are not in coni'lict with
any other pm 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
submission of the Design/Builder's Proposal as well as the preparation and subrdssion of any modifications to the
Proposal prior to execution of the Part 2 Agreement.
1.2 RESPONSIBILITIES
i.2.1. Design services required by this Part 1 Agreement shall be performed by qualified architects and other
design professionals. The contractual obhgafions 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 arrangemen;s with
respect to 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, 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 beheves 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 not/fy the City in writing. Neither the Design/Builder ~t the
Architect shall be obligated to perform any act which either believes will violate any applicable law. i,le,?,
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/n terms of the other.
1.3.2 The Design/Builder shall visit the site, become fanfiliar with the local conditions, and correlate observable
c ondihons with the requkements 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 hws. 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 construction of the
Project.
1.3.5 The Design/Builder shall submJ, t to the City a Proposal, incincFmg the completed PrelLrninary 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 arckitecmral, structural, mechanJcaI and electrical systems, and the
materials and such other elements of the Project as may be appropriate. Deviations fa:om 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 Parr 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 cunfLrmed in writing by the City.
1.4.2 Making revisions in the Preliminary Design Documents, budget or other documents when such revisions
are:
1. hxconsistent with approvals or mstmntions 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 furrfished by the City as described in Paragraph
2.1. When authorized, the DesigrdBuilder shall provide processional services to assist the City in the preparation of
the pr6gram. 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 requ/rements 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 relatiunsh/ps, requh:ements, and objectives
for the Project;
4. setting forth a written program of requirements for the City's approval w?rich summarizes the City's objectives,
schedule, consU-aints, and criteria.
1.4.4 Providing financial feasibility or other special studies.
1.4.5 Providing plamfing surveys, site evaluations or comparative studies ofprnspective 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, 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 measmed drawings thereof.
1.4.9 Providing services at the City's specific request to verify the accuracy of drawings or other information
fuimshed 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 owrfing and operating costs.
1.4.12 Providing interior designs and other sirrdlar services required for or in connection with the selection,
procurement or installation of furinmre, furrfishings and related equipment.
1.4.13 Providing services for plonl~ing 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 ma~'ner 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 desiguate a representative anthor/zed to act on the City's behalf with respect to the Project.
The City or s~.ch authorized representative shall render decisions in a timely m~n'ner 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 sendces. 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 expens~ in a timely manner and shall not delay the orderly progress of the Design/Builder's
services.
2.1.4 The C~ty shall furnish surveys describing physical characteristics, legal limJtat/ons and utility locations for
the site of the Project, and a whtten 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 pertakdng
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.
2.1.5 The City shall furnish the services of geotechnical en~ineers when such services are stipulated in tiffs Part 1
Agreement, or deemed reasonably necessary by the Des/gu/Builder. Such services may hiclude but are not lhrfited 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 consultams shall include preparation and submission of all appropriate reports and
professional recommendatiorm.
2.1.6 The City shall disclose, to the extent 1,mown to the City, the results and reports of prior tests, inspections or
investigations conducted for the Project involving: structural or mechanical sysmms; 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 ofpolltuants at the Project's site.
2.1.7 The City shall furnish all legal, accounfmg and insurance counseling services as may be necessary at any
rime for the Project, including such auditing services as the City may require to verify the Desi~mffBuilder'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 exbcution 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 furmshed 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
judgmem, except to the extent the City advises the Design/Builder to the contrary in writing.
2.1.10 The City stroll commUmcate with persons or entities employed or retained by the DesignfBuilder through
the Design/Builder, unless otherw/se directed by the Design/Builder.
ARTICLE 3
OV~NERSHIP AND USE OF
DOCUlVlENTS AND ELECTRONIC DATA
3.1. The copies or other tangible embodfunents of all design materials, whether or not such materials are subject to
intellectual property protection, including but not limited to documents, shop drawings, computer programs developed
for the Project or if such programs are not the property of Design/Builders 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 proper~ 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. Durmg 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 properly rights, if uny, to the contents of or
concepts embodied in the Design Materials shall belong to the Design/Btfflder or its Design Subcontracters in
accordance w/th their contractual relationship and may be copyrighted by thmn 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
intellectual 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 dehvered to the City, a world-wide, paid-up, nonexclus/lye,
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 pubhsh and allow others to publish, in any
manner, at any time and as often as it desires, With or without compensation to the Desitin/Builder or any third parry
subject to the following reslhcfions: (a) All copyright and other intellectual proprietaw rights in or relating to a~qy of the
Design Materials, shall remain the properly of the Design?Builder or Design Subcontractor whether or not the Project is
constructed. It is understood that, except as provided m this para~aph, the Design/Builder and Design Subcontractor
shall have the right td'~ame any detail, part, concept or system(s) shown on, specified in, or inferable from the Design
Materials on any other project and to retain copies for the Design/Builder's or Design Subcontractor's furare use; (b)
City shall not, without prior written consent of the Design/Builder or Design Subcontractor use Design Materials or
documents, in whole or/n part, for the constanction of any other project. 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 Conla-act and the Contract
is termmaterk City shall be entitled to use the Design Materials for completion of the Project by others without
additional compensation, or a release, indemnification or other action by City; (c) Any reproduction of the Design
Materials or part of them shall be faittfful and accurate to the original and of good quarry; (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 tmderstood 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 un/que and
of commercial value, and the Design/Builder and its Design Subcontractors agree not to design or build, or allow other
third parties the use of the Design Materials to design or build another structure(s) having a substantially similar
architectural expression so that an average person would relate the structure(s) to the Project. 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 DesigrffBuilder complies with the first semence of tkis paragraph. Design/Builder shall
include this provision in its conlracts 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 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 dehvery as provided above,
Design/Builder shall pay City any damages City may sustain from the failure.
ARTICLE 4
TEVIE
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 t Agreement through no fault
of the Design/Builder, any applicable schedule shall be equitably adjusted.
43 When any period of I/me is referred to in the Contract Documents by days, it winl 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 from midnight to the next midnight shall constitute
a day. A working day is any day; Monday through Friday of each week, also called business day.
.aRTICLE 5
INDEM]NqFICATION AND INSURANCE
5.1 Indemnification:
The Desigm/%uilder agrees to indemrfify and hold harmless the City, its officers, employees, insurers, and self-insurance
pool, from and against all liability, claims, and demands, on account of injm3,, loss, or damage, including without
limitation claLms arising from bodily injury, personal injury, siclmess, disease, death, property loss or damage, or any
other loss of any 'kind whatsoever, which ar/se out of or are th any manner connected with this contract, to the extent that
such injury, loss, or damage is caused in whole or m part by, or is claimed to be caused m whole or in part by, the act,
ormssion, error, professional error, mistake, negligence, or other fault of the Design/Builder, any Subcontractor of the
Design/Builder, or any officer, employee, representative, or agent of the Desiring/Builder or of any Subcontractor of the
Design/Builder, or which arises out of any workmeffs compensation claim of any employee of the Design/Builder or of
any' employee of any Subcontractor of the Design/Builder. The Design/Builder agrees to investigate, handle, respond m,
and provide defense for and defend aga/nst, any such liability, claims or demands 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, any such liability, claims, or demands. The Design/Builder also agrees to bear all other costs
and expenses related thereto, /ncluding 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 fmal judgment of a court of competent
jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the
City, its officers, or its employees, the City shall reimburse the Desi~m/'Builder for the portion of the judgment
attributable to such act, om/ssinn, or other fault of the City, its officers, or employees.
5.2 Design/Builder's Insurance:
5.2.1. The Desigu/Builder agrees to procure .and maintain, at its own expense, a policy or pohcies 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 addition to any other insurance reqmrements imposed by tiffs contract or
by law. The DesignPBuilder 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 amounts, duration, or types.
5.2.2. Desi~m~Bttildar shall procure and maintain, and shali cause any Subcontractor of the Design/Builder to procure
and maintain, the minimum insurance coverages listed in the Supplemental Conditiom. If the Supplemental Conditions
do not set forth minimum insurance coverage, then the rn~nimum coverage shall be as set forth below. Such coverage
shall be procured and maintained with forms and /nsurance acceptable to 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 relroaclive datos and extended reporting periods
shall be procured to maintain such continuous coverage.
5.2.2.1. P?orkmen's Compensation insurance to cover obligations imposed by applicable laws for any
employee engaged Jn the performance of work under tkis cantmct, and Employers' Liability/nsurance with
mimmum 1/mits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy 1Lmit, and FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status
may be substituted for the Workmen's Compensation requ/z-ements of this paragraph.
5.2.2.2. Commercial General Liability insurance with rnimmum combined single limits of ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The
policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury,
broad form property damage (including complete& operations), personal injury (Including coverage for
contractual and employee acts), blanket contractual, independent DesigrfBuilders, products, and completed
operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy
shall contain a severabllity 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) hggregate with respect to each Design/Builder's owned, hired and non-
owned vehicles assigned to or used in performance of the services. The pohcy shall contain a severabil/ty of
interests provision. If the Desi~_m~Builder has no owned automobiles, the requirements of this Section 5.4.2.3
shall be met by each employee of tlie Design/Builder providing services to the City under this contract.
5.2.2.4. Professional Liability Insurance with mimmum 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 requked, the policy or policies requ/red above shall
be endorsed to include the City of Aspen and the City of Aspeffs officers and employees as additional msureds. Every
policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspe~ shall be excess and not
contributory insurance to that provided by Design/Builder. No additional hasured endorsement to the policy required
above shall contain any exclusion for bodily injury or property damage arising fi.om completed operations. The
DesigrffBuilder shall be solely 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/Builder's
insurance agent as evidence that policies providing the required coverage, conditions, and mmimam limits are in full
force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No
other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage
afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior
written notice has been given to the City of Aspen.
5.2.5 In addition, these Certificates of Insurance shall contain the following clauses:
Under~vriters and issuers shall have no right of recovery or subrogation against the City of Aspen,/t being the
intention of the parties that the insurance pohcies so effected shall protect all parties and be pnmmy 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 undervwiters and insurers shall have no right of
recovery or subrogation against the Design/Builder.Underwriters and issuers shall have no fight 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 prm~ry coverage for any and all losses covered by the above-described
insurance. To the extent that the City's thsurer(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 premiams 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.Any and all deductibles in the above-described insurance policies shall
be assumed by and be for the mount of, and at the sole risk of the Proposer.
Location of operations shall be: "All operations and locations at which work in cormection with the referenced
project is done?Location of operations shall be: "All operations and locations at which work in connection
w~th the referenced project ~s don .
Certificates of Insurance for all renewal pohcies shall be dehvered 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 th/s agreement or thereafter.
5.2.6. Failure on the pan of the Desigr~3uilder to procure or maintain policies providing the required coverage,
conditions, and minimum lira/ts shall constitute a material breach of con~ract upon which City may immediately
tenv2nate 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 hi connection therewith. All moneys so paid by City shall be repaid by
Design/Builder ~o 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 lnsurance:
5.3.1. The parties hereto understand that the City is a member of the Colorado Intergovernmental R/sk Sharing
Agency (CZRSA) and as such participates in the CrRSA Property/Casualty Pool. Copies of the CIRSA policies and
manual are kept at the City of Aspen Finance Department and are available to Desigr~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 thtend to waive
by any provision of this conU:act, the monetary limitations or any other fights, immunities, and protections provided by
the Colorado Governmental Immunity Act, Section 24-10-I01 et seq., C.R.S., as fi:om time to time amended, or
otherwise available to City, its officers, or its employees. Further, notl'fing in the Contract Documents shall be consumed
or interpreted to require or provide for thdemnlfication of the Design/Builder by the City for any injury to any person or
any property damage whatsoever wtfich is caused by the negligence or other rnlsconduat of City or /ts agents or
employees.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 The City and the Desigr~Builder, respectively, bind themselves, their partners, 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
assi~ this Part 1 Agrecunent 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 the entire and integrated agreement between the City and the
Desig~Bullder and supersedes all prior negotiations, representations or agreements, either written or oral. This Part
1 Agreement ~aay be amanded only by written instrument signed by both the City and the Design/Builder.
6.4 Prior to the terrmnation of the services of the Areh/tect or any other design professional designated in this
Pan 1 Agreement, the Design/Builder shall identify to the City in writing another arch/tect 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 Arcintect or other design professional whose services are being temtinated.
6.5 Nondiscrimination
During the performance of this Contract, the Desi~m~Builder agrees as follows:
6.5.1. The Desi~m~'Bnllder will not discriminate against any employee or applicant for employment because
of race, color, religion, sex, national origin, age, marital status, sexual or/entafion, bein~4mdicapped, a disadvantaged
person, or a disabled or Vier Nam era veteran. The Design/Builder will take affirmafiv~ action to insure that apphcants
are employed, and that employees are treated during employment without regard,..~o their race, color, religion, sex,
national origin, sex, age, sexual or/entat/on, handicapped, a disadvan~ged person, or a clisabled or Viet Nam era
veteran. Such action shall include, but not be limited to, the followSng: employment, upgrading, demotion or transfer;
recnsitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection
for mining, including apprenticeship. The DesigrffBuilder agrees to post in conspicuous places, available to employees
and applicants for employment, notices to be provided setting forth the provisions of tiffs 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 origin, sexual orientation, age, marital stares, 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 solicitatious or advertisements for employees placed by or on behalf of
the Design/Builder, state that all qualified apphcants MI1 receive consideration for employment without regard to race,
color, religion, sex, national origin, sexual orlentafior~ age, marital status, being handicapped, a disadvantaged person,
or a disabled or VietNam em veteran.
6.5.4. In alt sohcitations 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 Suppher shall be notified by the Design/Builder of the Subcontractor's obligations under th/s Contract
and the regulations relative to nondiscrimination on the grounds of race, color, rehgion, sex, national origin, sexual
orientation, age, marital stares, being handicapped, a disadvantaged person, or a disabled or Viet Nam em 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 uinon
or work~rs~ representatives of the Design/Binlder's commilrnents under this section, and shag 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
vahdly given if del/vered 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.
~7 Generak
Should the City or the Design/Builder suffer injuxy or damage to person or property because of any error, omission or
act of the other party or of any of the other par~s employees or agents or others for whose acts the other party is legally
table, cla/m will be made in writing to the other party within a reasonable time of the first observance of such injury or
damage. The provisions of this paragraph shall not be conslrued as a substitute for or a waiver of the provisions of any
apphcable statute of limitations or repose.
6.7.1. The duties and obligations imposed by these General Conditions and the rights and rernedies 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 rights and remedies available to the City thereunder, are in
addition to, and are not to be construed in uny way as a linfitation of, any rights and remedies available to any or ail of
them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by other
provisious 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 xepresentatious, warranties and guarantees made in the Contract Documents will survive final payment and
term/natiun or completion of the Agreement.
6.8 Independent Contractor Statns:
It is expressly acknowledged and understood by the parties that nothing th this agreement shall result in, or be consm~ed
as establishing an employment relationship. The DesignfBuilder shall be, and shall perform as, an independent
contractor who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant
of the Desigr~Builder shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is
interested only in the resuks obtained under the Contract Documents. The mariner and means of conducting the Work
are under the sole control of the Design/Builder. None of the benefits provided by the City to its employees hichiding,
but not lira/ted to, worker's compensation insurance and unemployment insurance, are available fi.om the City to the
employees, agents or servants of the Design/Builder. The Design/Builder shall be solely and entirely responsible for its
acts and for the acts of the Design/Builder's agents, enxployees, servants and Subcontractors dmmg the performance of
the Agreement.
TItZ DESIGN/BUILDER, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO
WORI~gRS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND
STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO TI-BE AGREEMENT.
6.9 Prohibited lnterest:
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 warrants that no person or selling agency has been employed or retained to sohc/t 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 sell/ng agencies maintained by the Design/Builder for the
purpose of securing business.
6.10.1. The Desigr~Builder agrees not to g/ve 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 requ/xement or a purchase request, influencing the content of any specification or procurement standard,
rendering of advice, investigation, auditing, or in any other advisow capacity in any proceeding or application, request
for mhng, determination, clakn 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' elf 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 ora Subcon~-act or order. The Design/Builder is prohibited
from inducing, by any means, any person employed under tiffs Agreement to give up any part of the compensat/on to
wkich he/she is otherwise entitled. The Desigr~Builder shall comply with all applicable local, state and federal "anti-
kickback" statutes or regalafions.
6.1I Payments Subjectto AnnualAppropriations:
If the Agreen~ent awarded extends beyond the calendar year, nothing herein shall be construed as an obhgation by the
City beyond any amounts that may be, fi.om time to t/me, appropriated by the City on an annual basis. It is understood
that payment under any con~:act is conditional upon annual appropriation of funds by said governing body and that
before providing services, the Design/Builder,/fit 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 DesigtVBuilder Acceptance:
6.12.1. The acceptance by the Design/Builder of any payment made on the final completion of Work trader these
General Conditious, or of any f'mal payment due on termmatiun, shall coustitute a full and complete release of the City
from 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 Doctmaents.
6.12.2. No action shall 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 out of anything done in connection with this Agreement
unless such action shall be commenced within 180 days after the date approval of the final progress payment hereunder,
or within 180 days of the termination of fuis Agreement.
6.13 Successors andAssigns
This Agreement and all of the covenants hereof shall mare 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 fight to assign, Iransfer or sublet his or her interest or obligations
hereunder without the written consent of the other party.
6.14 ThirdParties
This Agreement does not and shall not be deemed or conslraed to confer upon or grant to any third party or parfies~
except to parties to whom the Design/Builder of the City may assign this 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 the 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 conslraed, 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. Venu. e is agreed to be exclusively in the courts of Pitkm County, Colorado.
6.2 7 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 Agreemem: was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that
no censn-uctinn 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 provision of the Agreemem is subsequently declared by le~slative or judicial authority to be uxlawftfl,
unenforceable, or not hi accordance with applicable laws, statutes, and regnlafions of the United States of America or the
State of Colorado, ail other provisions of the Agreement shall remain in full force and effect.
ARTICLE 7
TERMINATION OF THE AGREEMENT
7.1 This Par~ I Agreement may be terminated by either party upon seven (7) days' written notice should the
other party fail to perform substantially in accordance with /ts terms through no fault of the parry imtiatmg the
termination.
7.2 This Part I 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 fauk of the Design/builder, the Design/Builder shall be compensated for
services performed to the termination date, together with Reimbursable Expenses then due and Termination
Expenses. Termination Expenses are expenses directly attributable to termination, including a reasonable amount for
overhead and profit, for which the Desi,,~/Builder is not otherwise compensated under this Pan 1 Agreement.
JPW-lO/26/2005-M:~city~cityatty~contract\construc~d~l-lOl.doc
PART TWO AGREEMENT FOR DESIGN/BUILD PROJECT
THIS AGREEMENT, made and entered into on 24 October 2005, by and between the CITY OF
ASPEN, Colorado, hereinafter called the "City", B.T.E. Concrete, 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: Rio Grande Parking Garage Main
Stairs Replacement, and,
WHEREAS, the Design/Builder, in response to such advertisgment, 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 Two Hundred Twenty
Six Thousandvand Zero Cents(S226,000.00) or as shown in the proposal.
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.
CC4-971.doc *'CC2 Page 1
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 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 revie~ved 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 2 Agreement.
CC4-971.doc "*CC2 Page 2
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 Par[ 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.
RECOMMENDED FOR APPROVAL:
APPROVED AS TO FORM:
By:
ATTESTED BY:
DESIGN/BUILDER:
/
Title: //~ -(~>~)/~Z
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.doc *'CC2 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 duly sworn, did say that s/he is of
and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said instrument was signed
and sealed in behalf of said corporation by authority of its board of directors, and said deponent
acknowledged said instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above
written.
Notary Public
My commission expires:
Address
CC4-971.doc **002 Page 4
CITY OF ASPEN, COLORADO
GENERAL CONDITIONS FOR PART TWO
OF DESIGN/BUILD AGREEMENT
FOR
CONSTRUCTION CONTRACTS
(Version DB2-101)
TABLE OF CONTENTS
Article I - Definitions.
1.1. Definitions
Article 2 - Preliminary Matters.
2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
Deliveq, of Bonds
Copies of Documents
Commencement of Contract Time, Notice to Proceed
Starting the Project
Before Starting the Project
Pre-constxuction Conference
Project Frog~ss Meeting
Article 3 - Contract Documents, Intent, Amendinp~ Reuse
3.2.
3.3.
3.4.
Ownership of Design Materials and
Article 4 - Availability of Lands: Physical Conditions: Reference Points.
4.1. Availability of Lands
4.2. Physical Conditions
4.2.1. Explorations and Reports
4.2.2. Existing Structures
4.2.3. Report of D/ffefing Conditions
4.2.4. Engineer's Review
4.2.5. Possible Document Change
4.2.6. Possible Price and Time Adjustments
4.3. Physical Conditions - Underground Facilities
4.3.1. Shown or Indicated
4.3.2. Not Shown or Indicated
4.4. Reference Points
4.5. Protection and restoration of Propcay and Landscape
4.6. Hazardous Materials
4.7. Design/Builder Representations
Article 5 = Bonds, Indemnification, and Insurance
5.].
5.2.
5.3.
5.4.
Article 6 - Design/Builder's Responsibilities.
6.1.
6.2.
6.3.
6.4.
6..5.~.6.
6.7.
6.8.
6.9.
6.10.
6.1l.
6.12.
6.13.
6.14.
6,15.
6.16.
6.17.
6.18.
6.19.
6.20.
6.21.
6.22.
General Responsibilities
Supervision and Superintendence
Labor, Materials, and Equipment
Services and Responsibilities
Reserved
Work Schedule
Substitutes of "or-equal" Items
Subcontractors, Supplies and Others
Subcon~acfing and Pem~ntage of Work Awarded to Subcontractur(s) ............................................................................................. 20
Patent Fees and Royalties
Pemdts
Laws and Regulations
Taxes
Use of Premises
Record Documents
Safety and Protection
Emergencies
Shop Drawings and Samples
Mechanics' Lien
Continuing the Work
Design/Builder's Facilities
Article 7 - Other Work.
7.1. Related Work at Site
7.2. Coordination
Article 8 - City's Responsibilities.
8.1.
8.2.
8.3.
Article 9 - Engineer's Status During Construction.
9.1. City's Representative
9.2. Visits to Site
9.3. Project
9.4. Clarification and Interpretation
9.5. Authorized Variations in Work and Minor Conlmct
9.6. Rejecting Defective Work
9.7. Shop Drawings, Change Orders and Payments
9.8. Decisions on Disputes
9.9. Reserved
9.10. Linfitefions on Engineer's Responsibilities
Article 10 - Changes in the Work.
I0.1. City Initiated Changes
10.2. Written Notice of Change
10.3. Changu Order
10.4. DesiguJBuilder Change Request
10.5. DownTime
10.6. Submittal Requirements and Waiver of Claims
Article 11 - Change of Contract Price or Contract Time.
Force Account Work
.4. Contract Sum Determination
.5. Cost and Pricing Data
.6. Variation in Quanfi~ of Unit Priced Items
Article 13 - Warranly and Guarantee; Tests and Inspection; Correction or Acceptance of Defective Work.
13.1. Warrant~
13.2. Access to Work
13.3. Tests and Inspections
13.4. Uncovering Work
13.5. City May Stop the Work
13.6. Correction or Removal of Defccfve Work
13.7. Corcection Pctiad
13.8. Acceptance of Defective Work
13.9. Cfly May Coccect Defective Work
13.10, Unauthorized Work
Article 14 - Payments to Design/Builder and Completion.
14.1. Deterafination of Work Value
14.2. Application for Progress Payment
14.3. Design/B uilder's Warranty of Title
14.4. Engineer's Review of Progress Payments
14.5. Substantial Complet~ on
14.6. Partial Utilization
14.7. Final Inspections
14.8. Final Progress Payment
14.9. Settiement Date, Notice to SubconUactors, Acceptance and Final Payment ........................................................................................... 40
14.10. Design/Builder's Continuing Obligation ................................................................................................................ 40
14.11. Liquidated Damages ................................................................................................................ 40
Article 15 - Suspension of Work and Termination.
15.1. Cil~ May Suspend Work
15.2. City May Terminate
15.3. DesignfBuilder May Stop Work or Termthate
15.4. Tenuination of Professiona Desi~a services
Article 16 - Miscellaneous.
16.8. Payments Subject to Annual Appropriations
16.9. Design/B uilder Acceptance
16.10. Successors and Assigas
16.11. Third Parties
16.12. Waiver
16.13. Agreement Made in Colorado
16.14. Attorneys' Fees
16.15. Waiver of Presumption
16.16. Severability Clause
16.17. Audit and Records
16.18. Audit
INTRODUCTION
The Contract Documents are complementary, and what is required by any one shall be as binding as if required by ail,
unless certain services or equipment are specifically excluded. These General Conditions have been prepared to be
inc?rpora?d by reference into the Contract entered into between the City and the Design/Builder. In the event of conflict
or mcons~.stency among the Contract Documents, the order of precedence set forth in the Design/Build Agreement shall
govern the interpretation of the Con~ract 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 - DEFINITIONS
1.1. Whenever the words, forms, or phrases defined herein, or pronouns used in their place occur in the Contract
Documents, the intent and meaning shall be interpreted as follows:
ASCE
NACE
SSPC
AASHTO
AIA
SICS
AISI
ANSI
ASME
ASTM
AWG
AWS
BAFO
CDOT
O&M
DHA
EBD
EIA
EPA
FCC
FHWA
FTA
HVAC
NBS
NEC
NTP
NESC
NFPA
OSHA
PHA
SAE
UL
UMTA
UD&FCD
American Society of Civil Engineers
National Society for Corrosion Engineers
Special Society for Paint Council
American Association of State Highway and Transportation Officials
American Insurance Association
American Institute of Steel Construction
American Iron and Steel Institute
American National Standards Institute
(formerly ASA and USASI)
American Society of Mechauical Engineers
American Society for Testing and Materials
American Wire Gauge
American Welding Society
Best and Final Offer
Department of Transportation, State of Colorado
Operations and Maintenance
DetaiIed Hazards Analysis
Escrow Bid Documents
Electronic Industries Association
United States Environmental Protection Agency
Federal Communications Commission
Federal Highway Administration
Federal Transit Administration
Heating, Ventilation, and Air Conditioning
National Bureau of Standards
National Elec~-ic Code
Notice to Proceed
National EIectric Safety Code
National Fire Protection Association
Occupational Safety and Health Administration
Preliminary Hazards Analysis
Society of Automotive Engineers
Underwfiter's Laboratories, Inc.
United States Department of Transportation, Urban Mass Transportation Authority
Urban Drainage and Flood Control District
MUTCDManual on Uniform Traffic Control Devices
1.2. Wherever used in these General Conditions or in the other Contract Documents the following terms have the
meanings indicated which are applicable to both the singular and plural thereof:
Addenda - Written or graphic insmunents issued prior to the opening of Bids which clarify, correct or change the
bidding documents, Contract Documents, drawings, details or specifications.
Bid - The offer or proposal of the bidder submitted on the prescribed form(s) setting forth the prices for the Work to be
performed.
Bidder - Any qualified mspousible and responsive fnTn or corporation submitting a Bid for the Work.
Bid Package - All information and standard Contract Documents prepared by the City to assist potential bidders to
prepare their bids.
Bonds - Bid, performance, payment, maintenance bonds and other acceptable insm.tments of financial security,
furnished by the Design/Builder and his/her surety in accordance with the Contract Docmnents.
Change Order - A written order to the Design/Builder authorizing an addition, deletion or revision in the Work within
the general scope of the Contract Documents, or authorizing an adjustment in the Contract Price or Contract Time,
issued on or alter the Effective Date of the Design/Bnild Agreement.
City or Owner - The City of Aspen in Pitkin County, Colorado.
Contract - All conttact documents attached to the Design/Build Agreement and made a part thereof as provided herein.
Contract Documents - The Contract Documents consist of the Part 1 Agreement to the extent not modified by this Part
2 Agremnent, this Part 2 Agreement, the Design/Builder's Proposal and written addenda to the Proposal, the
Construction Documents approved by the City and Change Orders issued alter execution of this Part 2 Agreement. The
Contract Documents also include: Invitation to Bid, Instructions to Bidders, Bid Proposal, Addenda, General
Conditions, Special Conditions, Design/Bnild Agreement, Bid Bond, Notice of Award, Payment, Performance, and
Maintenance Bonds, Drawings identified in the Contract Documents or attached as part of the Bid, and Specifications
identified in the invitation to Bid or attached as part of the Bid, Affidavit of Compliance form, Liquidated Damages
form, Design/Builder's License form, Daily Constraction Log form, Progress Pay Estimate form, and Insurance
Certificates.
Design/Builder - The qualified responsible and responsive firm or corporation with whom the City has entered into the
Part 1 and/or Part 2 Agreement.
Contract Price - The moneys payable by the City to the Design/Builder under the Contract Documents as stated in the
Design/Bnild Agreement (subject to the provisions of paragraph 11.4.), except for the Minor ConWact Revisions item(s)
which are subject to the City's written authorization for expenditure.
Contract Time - The number of the consecutive calendar days or the working days and/or the deadline set in the
Contract Documents for the completion of the Work.
Daily Construction Log - The form famished by the City Engineering Department, used by the City Project Inspector
to record the Design/Builder's daily work quantities and project events. Daily construction log is the only verified
justification for payment to the Design/Bnilder.
Defective - An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient,
or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard,
test or approval referred to in the Conaact Documents, or has been damaged prior to the Engineer's recomrnendafion of
final payment (unless responsibility for the protection thereof has been assumed by the City at Substantial Completion in
accordance with paragraph 14.5 or 14.6).
Drawings - The part of the Contract Documents which show the character and scope of the Work to be performed and
which have been prepared or approved by the Engineer.
Effective Date of the Design/Build Agreement - The date indicated in the Agreement on which it becomes effective,
but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two
pardes to sign and deliver.
Engineer - The person, firm, corporation or the City Engineer, named as such in the Contract Documents.
Field Order - A written order affecting a change in the Work not involving an adjustment in the Contract Time, issued
by the Engineer to the Design/Builder during construction.
Hazardous Materials - The term "Hazardous Materials" shall have the meaning set forth at 42 U.S.C. ' 9601(14) and
regulations promulgated pursuant thereto.
Laws and Regulations; Laws or Regulations - Laws, rules regulations, ordinances, procurement code and/or orders.
Notice of Award - The written notice by the City to the apparent successful bidder stating that upon compliance by the
apparent successful bidder with the conditions precedent enumerated therein, within the time specified, the City will sign
and deliver the Contract.
Notice to Proceed - A written notice given by the City to the Design/Builder fixing the date on which the ConWact Time
will commence to nm and on which Design/Builder shall start to perform Design/Builder's obhgations under the
Contract Documents.
Partial Utilization - Placing a pottiun of the Work hi service for the purpose for which it is intended (or a related
purpose) before reaching Substantial Completion for ali the Work.
Procurement Code - Title 4 of the City of Aspen Municipal Code.
Progress Pay Estimate - The form furnished by the City Engineering Department, which is to be used to record,
approve, and process payment when the Design/Builder requests progress or final payments and which is to include such
supporting documentation as is required by the Contract Documents.
Project - The total construction of which the Work to be provided under the Conttact Documents may be the whole, or
a part as indicated elsewhere in the Contract Documents.
Project Inspector - The authorized Civil Engineer or Civil Engineering Technician, designated by the City Engineer to
observe construction, materials placement and testing and to prepare the Daily Coustmction Logs and field reports.
Punch List - A form or letter that lists all incomplete or deficient Bid items, and is prepared upon subslzntial completion
of the Work by the City Project Inspector.
Shop Drawings - All drawings, diagrams, illnstrations, brochures, schedules and other data which are specifically
prepared by or for the Design/Builder and the sub-Design/Builder to illustrate some portion of the Work and all
illnstrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared
by a Supplier and submitted by the Design/Builder and the Sub-Design/Builder to illustrate materiaI or equipment for
some portion of the Work.
Specifications - Those porti6ns of the Conaact Documents consisting of written technical descriptions of materials,
equipment, conslrucfion systems, standards and workmanship as applied to the Work and certain administrative details
applicable thereto.
Subcontractor - A firm or corporation having a direct contract with the Design/Builder or with any other Sub-
Design/Builder for the performance ora part of the Work at the site.
Substantial Completion - The Work (or a specified part thereof) has progressed to the point where, in the opinion of
the Engineer as evidenced by the Engineer's acceptance, is sufficiently complete, in accordance with the Contract
Documents, so that the Work can be utilized for the purposes for which it is intended. The terms "substantially
complete" and "substantially completed" as applied to any Work refer to Substantial Completion thereof. The term
Substantial Completion shall mean one hundred percent (100%) completion of the Work.
Special Conditions or Special Provisions - The part of the Contract Documents which mne~ds or supplements these
General Conditions.
Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor who supplies materials or equipment
for the Work including that fabricated to a special design but who does not perform labor at the site.
Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, runnels or other such
facilities or attachments, and any encasements containing such facilities which have been installed underground to
furuisb any of the following services for materials; electricity, gases, steam, liquid petroleum products, telephone or
other communications, cable television, water, wastewater and surface nmoff removal, lxaffic or other con~'ol systems.
Unit Price Work - Work to be paid for on the basis of unit prices.
Work - The services provided by the Design/Builder and the entire completed construction or the various separately
identifiable parts thereof required to be furnished under the Contract Documents. Work is the result of performing
services, furnishing labor and furnishing and incorporating materials and equipment into the construction, all as required
by the Contract Documents and those not specifically mentioned but necessary for successful completion of the Bid
items.
Written Notice or Written Notice of Amendment - A written amendment of the Contract Documents, signed by the
City and the Design/Builder on or al~er the Effective Date of the Design/Build Agreement and normally dealing with the
non-engineering or non-teclmical rather than strictly Work-related aspects of the Contract Documents
ARTICLE 2 - PRELIMINARY MATTERS
2.1 Delivery of Bonds:
When Design/Builder delivers the executed Contract Documents to the Engineering Department, the Design/Builder
shall also deliver such Bonds as the Design/Builder is be required to furrfish in accordance with paragraph 5.1.
2.2 Copies of Documents:
The City shall furnish to the Design/Builder up to three copies (unless otherwise specified in the Special Conditions) of
the Conlxact Documents as are reasonably necessax-y for the execution of the Work. Additional copies will be rum/shed,
upon request, at the cost of reproduction.
2.3 Commencement of Contract Time, Notice to Proceed:
Prior to the City issuing a Notice to Proceed, either the City Manager or the Mayor of the City of Aspen shah approve
the Cona'act Documents and shall execute the same. Notwithstanding any representations to the contrary made by City's
employees, either directly, indirectly, or by implication, no Contract shah be in effect nor shall be binding upon the City
until such time as the Contract is executed by the City pursuant to authority granted in accordance with Section 4-08-040
of the Procurement Code. The City shall issue a Notice to Proceed at, er either (a) the City Manager has executed the
Contract, or (b) The City Council has authorized the execution of the Contract, and the Design/Builder has executed the
Il' -- iii-ii 1
Conlract and other Contract Documents, and has delivered the specified bonds, Certificates of Insurance, as are required,
and any other documents required to be delivered by the Special Conditions and Addanda(s) ffany issued. The Contract
Time will commence to nm on the day indicated in the Notice to Proceed.
2.4 Startingthe Project:
The Design/Builder shall start to perform the Work on the date when the Contract Time corranences to run, but no Work
shall be done at the site prior to the date on winch the Conlract Time conmaences to nm and prior to a mandatory pre-
construction conference conducted by the City.
2.5 Before Starting the Project:
Before undertaking each part of the Work, the Design/Builder shall carefully study and compare the Contract
Documents and check and verify pertinent figures shown thereon and all applicable field measurements. The
Design/Builder shall promptly report in writing to the Engineer any conflict, error or discrepancy winch Design/Builder
may discover and shall obtain a written interpretation or clarification fi.om the Engineer before proceeding with any
Work affected thereby.
2.5.1. Within Three Days afier the Effective Date of the Contract (unless otherwise specified in the Special
Conditions or General Requirements), the Design/Builder shall submit to the Eng'meer for review:
2.5.1. I. An estimated progress schedule indicating the starting and completion dates of the various stages of
the Work;
2.5.1.2. A preliminary schedule of Shop Drawing submissions; and
2.5.1.3. Quality Conlrol and Quality Assurance (QA/QC) plan and policy to identify the
specific steps the Design/Builder will take to ensure the highest quality in the
constructed Bid items.
2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action
process.
2.5.2. Before any Work at the site is started, the Design/Builder shall deliver to the City and the Engineer, copies of
certificates (and other evidence of insurance requested by the City) which the Design/Builder is required to purchase and
2.6 Pre-construction Conference:
Within Seven (7) Consecutive Calendar Days afier the Effective Date of the Bid Award, and before the Design/Builder
starts the Work at the site, he/she and all of his/her sub-Design/Builders and suppliers shall attend a mandatoE/pre-
construction conference, conducted by the Engineer and others as appropriate to discuss coordination of conslruction
activities, procedures for handling Shop Drawings and other issues, and to establish a working understanding among the
parties as to the Work.
2. 7 Project Progress Meetings
The City and the Design/Builder shall meet once a week to review the construction activities, rote of progress, and other
project related issues to ensure efficient and smooth progress of work.
I'1 I- 'il fllIT'l T rr
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.1 Intent:
The Contract Docments comprise the entire agreement between the City and the Design/Builder concerning the Work.
The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract
Documents will be construed in accordance with the law of the State of Colorado.
3.1.1. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be
constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be
inferred from the Contract Documents as being required to produce the intended result will be supplied whether or not
specifically called for. When words which have a well-known technical or trade meaning are used to describe Work,
materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard
specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of
any governmental authority, whether such reference be specific or by implication, shall mean the latest standard
specification, manual, code or Laws or Regulations in effect at the time of opening of Bids (or, on the Effective Date of
the Contract if there were no Bids) except as may be otherwise specifically stated. However, no provision of any
referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Cunt~act
Documents) shall be effective to change the duties and responsibilities of the City, the Design/Builder or the Engineer,
or any of their consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective
to assign to the Engineer, or any of the Engineer's consultants, agents or employees, any duty or authority to supervise or
dkect the fum/shing or performance of the Work, or any duty or authority to undertake responsibility contrary to the
provisions of Article 9. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as
provided in section 9.4.
3.1.2. If, during the performance of the Work, Design/Builder finds a conflict, error or discrepancy in the Contract
Documents, the Design/Builder shall so report to the engineer and the City in writing at once and before proceeding with
the Work affected thereby and shall obtain a written interpretation or clarification from the Engineer.
3.1.3. 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 no the Architect shall
be obhgated to perform any act which either believes will violate any laws.
3.1.4. Nothing contained in the Part 2 Agreement shall create a contractual relationship between the City and any
person or entity other than the Design/Builder.
3.2 Amending andSupplementing ContractDocuments:
The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the
terms and conditions thereof in one or more of the following ways:
3.2.1. A formal Amendment of the Design/Build Agreement;
3.22 A Change Order pursuant to paragraph 10.3. As indicated in Article 11 Contract Price and
Contract Time may only be changed by a Change Order or a Written Notice of Amendment.
3.2.3. In addition, the requirements of the Contract Documents may be supplemented, and
minor variations and deviations in the Work may be authorized, in one or more of the following ways:
3.2.3.1. A Field Order (pursuant to paragraph 9.5);
3.2.3.2. The Engineer's approval of a Shop Drawing or sample (pursuant to paragraphs
6.18.5 and 6.18.6); or,
3.2.3.3. The Engineer's written interpretation or clarification (pursuant to paragraph 9.4).
3.3 Precedence of Contract Documents:
The Agreement governs over the Conlract Documents. A Change Order governs over all other Contract Document
impacted by change. The Special Conditions govem over the General Conditions.
3.4. Ownership of Design Materials and Documents:
3.4.1. The copies or other tangible embodiments of all design materials, whether or not such materials are subject to
intellectual property protection, including but not limited to documents, shop drawings, computer programs developed
for the Project or if such programs are not the property of Design/Builders the results of the use of them by
Design/Builder, data, plans, drawings, sketches, illus~ations, 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 Cunlract Documents (collectively "Design Materials") shall be and
remain the property of the City whether or not the Project or Work is commenced or completed; provided, however, that
City makes payment for the documents in accordance with the Contract Documents. During the term of the Agreement,
the 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 Subconl~actors, 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 in the United States or in any other
counlry, or be subject to any other intellectual property protection.
3.4.2. As to those Design Materials subject to copyright or as to which patent or ~:ademark, or any other form of
intellectual 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 world-wide, paid-up, nonexclusive,
nonlransferable (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 otten as it desires, with or without compensation to the Design/Builder or any third party
subject to the following restrictions: (a) All copyright and other intellectual proprietary rights in or relating to any of the
Design Materials, shall remain the property of the 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 Subcon~actor
shall have the right to use any detail, part, concept or system(s) shown on, specified in, or inferable fi.om the Design
Materials on any other project and to retain copies for the Design/Builder's or Design Subcontractpr'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 prat, for the cons~'uction of any other project. If, however, City agrees to indemnify the City
of the intellectual property rights against liability arising fi.om the misuse or incorrect use of Design Materials by City,
City shall be entitled to, at no additional cost m the City, use such materials and documents for additions, improvements,
changes or aherations to the Project after completion. If Design/Builder is in default under this Contract and the Conlract
is terminated, City shall be entitled to use the Design Materials for completion of the Project by others without
additional compensation, or a release, indemnification or other action by City; (c) Any reproduction of the Design
Materials or part of them shall be faitlfful 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 dehvered to City. The resa/ctions set forth in (c) and (d) above shall be
imposed by City on any third par~y to whom the City allows to display or publish the Design Materials.
3.4.3. It is understood that City considers the Projecfs aggregate architectural expression (that is, the ovemil
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 its Design Subcontractors agree not to design or build, or allow other
third patties the use of the Design Materials to design or build another structure(s) having a substantially similar
architectural expression so that an average person would relate the structure(s) to the Project. Design/Builder and its
Design Subcon~:actors shall, however, be fi.ee to use individual features fi.om 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 conUacts with its Design SubconU'actors and provide copies of these agreements to City.
3.4.4. As of the Date of Subsmtial 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 to above wkich have not yet been submitted
to City. Design/Builder shall submit the Design Materials to City within ten days of the Date of Substantial Completiorh
or date of temaination. Ln 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 - AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS
4.1 ,~vailability of Lands:
The City shall furnish, as indicated in the Contract Documents, the lands upon wltich the Work is to be performed,
rights-of-way and easements for access thereto. The Design/Builder shall have full responsibility with respect to any
conditions or provisions contained in applicable easements relating to the lands upon wkich the Work is to be
performed.
4.2 Physical Conditions:
4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Special Conditions for identification of those
reports of explorations and tests of subsurface conditions at the site that have been utilized by the Engineer in
preparation of the Contract Documents. The Design/Builder may reasonably rely upon the accuracy of the technical
data contained in such reports, but not upon non-technical data, interpretations or opinions contained therein or for the
completeness thereof for the Design/Builder's purposes. Except as indicated in the immediately preceding sentence and
in paragraph 4.2.6. the Design/Builder shall have full responsibility with respect to subsurface conditions at the site.
Design/Builder shall not, by virtue of tins paragraph, be relieved from exercising ordinary skill and competence with
respect to reliance upon the accuracy of the techuical data contained in such reports.
4.2.2. EXISTING STRUCTURES: Reference is made to the Special Conditions for identification of those drawings
of physical conditions in or relating to existing surface and subsurface structures (except Underground Facilities referred
to in paragraph 4.3) which are at or contiguous to the site that have been utilized by the Engineer in preparation of the
Conlract Documents. The Design/Builder may reasonably rely upon the accuracy of the technical data contained in such
drawings, but not for the completeness thereof for the Design/Builder's purposes. Except as indicated in the immediately
preceding sentence and in paragraph 4.2.6. the Design/Builder shall have full responsibility with respect to physical
conditions in or relating to such structures. The Design/Builder shall not, by virtue of this paragraph, be relieved from
exercising ordinary skill and competence with respect to reliance upon the accuracy of the tectmical data contained ia
such drawings.
4.2.3. REPORT OF DIFFERING CONDITIONS: If the Design/Builder believes that:
4.2.3.1. Any technical data on which the Design/Builder is entitled to rely as provided in
paragraphs 4.2.1 and 4.2.2 is inaccurate; or
4.2.3.2. Any physical condition uncovered or revealed at the site differs materially from
that indicated, reflected or referred to in the Contract Documents,
Then, the Design/Builder shall promptly, after becoming aware thereof and before performing any Work in
connection therewith (except in an emergency as permitted by paragraph 6.22) notify the City and the Engineer
in writing about the inaccuracy or difference.
4.2.4. ENGINEER'S REVIEW: The Engineer will promptly review the pertinent conditions, determine the necessity
of obtaining additional explorations or tests with respect thereto and advise the City in writing (with a copy to the
Design/Builder) of the Engineer's findings and conclusions.
4.2.5. POSSIBLE DOCUMENT CHANGE: If the Engineer concludes that them is a material error in the Contract
Documents or that because of newly discovered conditions a change in the Contract Documents is required, a Change
Order will be issued as provided in Article 10 to reflect and document the consequences of the inaccuracy or difference.
4.2.6. POSSIBLE PRICE AND TIME ADJUSTMENTS: In each such case, an increase or decrease in the Codxact
Price or an extension or shortening of the Contract Time, or any combination thereof, will be allowable to the extent that
they are attributable to any such inaccuracy or difference as described in Section 4.2.3. The Design/Builder shall meet
and obtain approval fi.om the City Engineer or his/her designee prior to implementing any such change in the Work.
4.3 Physical Conditions - Underground Faciliffes:
4.3.1. SHOWN OR INDICATED: The information and data shown or indicated in the Contract Documents with
respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to the
City or the Engineer by the owners of such Underground Facilities or by others. Unless it is otherwise expressly
provided in the Special Condii/ons:
4.3.1.1. The City and the Eng'meer shall not be responsible for the accuracy or completeness of any such
information or data; and,
4.3.1.2. The Design/Builder shall have full responsibility for determining the existence of all Underground
Facilities, for reviewing and checking and potholing for all such information and data, for locating all
Underground Facilities shown or indicated in the Contract Documents, for coordination of the Work with the
owners of such Underground Facilities during construction, for the safety and protection thereof as provided in
paragraph 6.20 and for repairing any damage thereto resulting fi.om the Work, the cost of all of which will be
considered as having been included in the Conh'act Price.
4.3.2. NOT SHOWN OR INDICATED: If an Underground Facility is uncovered or revealed at or contignous to the
site which was not shown or indicated in the Contract Documents and which Design/Builder could not reasonably have
been expected to be aware of, Design/Builder shall, promptly after becoming aware thereof and before perfonrdng any
Work affected thereby (except in an emergency as pemaitted by paragraph 6.17.1), identify the owner of such
Underground Facility and give written notice thereof to that owner and to the City and the Engineer. The Engineer will
promptly review the Underground Facility to determine the extent to which the Contract Documents should be modified
to reflect and docment the consequences of the existence of the Underground Facility, and the Contract Documents will
be amended or supplemented to the extent necessary. During such time, Design/Builder shall be responsible for the
safety and protection of such Underground Facility as provided in paragraph 6.16.1. The Design/Builder shall be
allowed an increase in the ConU'act Price or an extension 'of the Contract Time, or both, to the extent that they are
attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and
of which the Design/Builder could not reasonably have been expected to be aware of such Underground Facility and
subject to acceptance and approval by the Eng'meer.
4.4 Reference Points:
4.4. The City shall provide engineering surveys to establish reference points for construction which in the
Engineer's judgment are necessary to enable Design/Builder to proceed with the Work. Design/Builder shall be
responsible for laying out the Work (unless otherwise specified in the General Requirements), shall protect and preserve
the established reference points and shall make no changes or re-locatious without the prior written approval of the City.
The Design/Builder shall report to the Engineer whenever any reference point is lost or destroyed or requires relocation
because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation
of such reference points by a Registered Professional Land Surveyor Licensed in the State of Colorado.
4.5 Protection and Restoration of Pro£erty and Landscape:
4.5.1. The Design/Builder shall be responsible for the preservation of all pubhc and private property and shall protect
carefully from disturbance or damage all land and property and shall protect carefully from disturbance or damage all
land and monuments and property marks until the Engineer has witnessed or otherwise referenced their location and
shall not remove them until directed.
4.5.2. The Design/Builder shall be responsible for all damage or injmy to property of any character, during the
prosecution of the Work, resulting fi:om any act, om/ssion, neglect, or misconduct in his manner or method of executing
the Work, or at any time due to defective Work or materials, and said responsibility shall not be released until the project
shall have been completed and accepted.
4.5.3. When or where any direct or intfirect damage or injury is done to public or private property by or on account of
any act, omission, neglect, or misconduct by the Design/Builder in the execution of the Work, or in consequence of the
non-execution thereof by the Design/Builder, he shall restore, at his own expense, such property to a condition sirdlar or
equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be
dkected, or he shall make good such damage or injury in an acceptable manner.
4.5.4. State Highway 82 and the streets within the corporate limits of the City of Aspen are viewed by the City as a
community asset which enhances the tourism induslry. The City, therefore, desires to save all vegetation and other
environmental features except for those which have been specifically identified for removal in the Contract Documents.
4.5.5. Materials storage, equipment parking, vehicle parking and stockpiling excavated materials shall be allowed only
in those areas designated by the Engineer.
4.5.6. Specific areas of vegetetion and other environmental features to be protected shall be staked, fenced, or otherwise
marked in the field by the Engineer. However, the fact that areas of vegetation and other environmental features are not
marked shall not necessarily mean that those items are expendable. The Design/Builder shall perform all his activities in
such a manner that the least environmental damage shall result. Any questionable areas or items shall be brought to the
attention of the Engineer for approval prior to removal or any damage activity. Damage or destruction of unmarked
trees or shrubs which could reasonably have been saved shall therefore be subject to the provisions these General
Conditions.
4.5.7. If the fence, staking or marking is knocked down or destroyed by the DesignfBuilder, the Architect shall suspend
the Work in whole or in part, until the fence or other protection is repaired to the Engineer's satisfaction at the
Design/Builder's expense. Time lost due to such suspension shall not be considered a basis for adjustment of Contract
Time or for compensation to the Design/Builder.
4.5.8. If the Design/Builder disturbs any of the landscape not called for removal, he/she shall restore those areas as
directed at the DesigrffBuilder's expense.
4.5.9. The City may requke that the Design/Builder replant an area that is damaged. The Work shall be done as
directed by the Engineer. If the Design/Builder is deemed to be responsible, then the replanting shall be done by the
Design/Builder at his/her expense. If the City is responsible, the costs will be reimbursed on a minor contract revisions
(MCR) basis unless existing cost proposal covers the Work.
4.5.10. With respect to replacement of trees and shrubs that have been damaged or destroyed, the following conditions
shall apply:
4.5.10.1. Trees or shrubs of replaceable size shall be replaced by the Design/Builder at his/her expense. If
he/she fails to do so within a reasonable length of time as determined by the Engineer and prior to the end of
the conWact time, the replacement value of the trees or shrubs will be deducted fi:om any money due to the
Design/Builder. These values shall be based upon averages derived from current prices of nurseries growing
the plants, plus the cost for planting and a guarantee for the first growing season.
i.~ll
4.5.10.2. When trees or shrubs beyond replaceable size have been damaged or destroyed, the value of such
trees or shrubs shall be calculated as per square yard of surface area measured at the ground level.
4.5.10.3. Any deduction assessed as l/quidated damages under this section shall not relieve the Design/Builder
from liability for any damages or costs resulting from delays to the City, traveling public or other
Design/Builders.
4.6 Hazardous Materials
4.6.1. Prior to commencement of any Work and as a condition precedent to payment by the City of any costs for it,
the Design/Builder shall at no additional cost to the City conduct tests the Design/Builder deems necessary to determine
the existence of Hazardous Materials by appropriately licensed SubconWactors or entities. The City shall reimburse the
Design/Builder for the invoice costs of the tests, only in the event that the Design/Builder furnishes the City with
certified test data and results wh/ch confirm the existence of Hazardous Materials.
4.6.2. If Hazardous Materials are discovered on or under real property which is owned by the City before the date of
Substantial Completion and Acceptance in accordance with Article I4 herein, which property is within the Project right-
of-way, the City shall, upon the request of the Design/Builder, and at the City's sole cost and expense, cause any such
Hazardous Materials to be encapsulated, treated or removed fiom such real property and transported for final disposal in
accordance with all Laws and Regulations, and shall cause such real property to be restored to its condition existing
prior to such removal (except for the absence of Hazardous Materials), including, to the extent required, any grading and
reinforcement necessary to restore the weight-bearing capacity of such real property prior to such event. The City shall
remove the Hazardous Materials and restore the real property in such a manner as not to interfere with the
Design/Builder's construction or operation of the Project.
4.6.3. If Hazardous Materials are present on or under the Project right-of-way as a result of any discharge, dutr~ing
or spilling on the Project right-of-way during the term of the Contract by any party, including the Design/Builder, other
than an agency of the executive branch of State or Federal Government, the Design/Builder shall at the Design/Builder's
sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed from the Project
right-of-way and transported for final disposal in accordance with all applicable Laws and Regulations, and shall cause
the Project right-of-way to be restored to its condition existing prior to such removal (except for the absence of the
Hazardous Materials), including, to the extent required, any grading and reinforcement necessary to restore the weight-
bearing capacity of the Project right-of-way prior to such event.
4.6.4. The City shall not be responsible for the cost of and the removal or clean-up of Hazardous Materials found in
any materials brought to the Project Site, aficer the Project Site is turned over to the Design/Builder.
4.6.5. The Design/Builder shall provide the Engineer with a written cextification each time materials or equipment is
brought onto the Work site that such materials or equipment do not contain Hazardous Materials.
4.6.6. The Design/Builder and the City shall cooperate with each other in the prosecution of any claim against or
defense of any cla/ms made by third parties in connection with Hazardous Materials present on the Project right-of-way
or contiguous properties owed or controlled by the City.
4. 7 Design/Builder Representations
By executing the Contract, the Design/Builder represents that he/she has visited the site, familiarized him/herself with
the local conditions under which the Work is to be performed (including weather conditions which can be expected), and
correlated his observations with the requirements of the Contract Documents.
ARTICLE 5 - BONDS, INDEMNIFICATION AND INSURANCE
5.1 Performance, Payment, and Maintenance Bonds:
5.1.1. Design/Builder shall furnish performance, payment, and maintenance Bonds, each in an amount specified in
the Special Conditions as security for the faithful performance and payment of all the Design/Builder's obligations under
the Conaact Documents. These Bonds shall remain hi effect until the job is advertised and closed except for the
Maintenance Bond which shall remain in full force and effect for One Year from the date of project closure, except as
otherwise provided by the Contract Documents. The Design/Builder shall also furnish such other Bonds as are required
by the Special Conditions. All Bonds shall be in the forms prescribed by Law or Regulation or by the Conlxact
Documents and be executed by such sureties as are named in the current list of "Compunies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circuiar
570 (amended) by the Audit StaffBureau of Accounts, U.S. Treasury Deparanent. All Bonds signed by an agent must
be accompanied by a cerdfied copy of the authority to act.
5.1.2. If the surety on any Bond furnished by Design/Builder is declared a bankrupt or becomes insolvem or its right
to do business is terminated in any state or it ceases to meet the requirements of paragraph 5.1, Design/Builder shall
within five days thereaf£er substitute another Bond and Surety, both of which nmst be acceptable to the City.
5.2 Indemnification:
The Design/Builder agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance
pool, from and against ail 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 injtny, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act,
omission, error, professional error, mistake, negligence, or other fault of the 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, or which arises out of any workmen's compensation claim of any employee of the Design/Builder or of
any employee of any Subcontractor of the Design/Builder. 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
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, any such liability, claims, or demands. The Design/Builder also agrees to bear ali 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 fiaudulent. If it is determined by the final judgment of a court of competent
jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the
City, its officers, or its employees, the City shall reimburse the Design/Builder for the portion of the judgment
atlributable to such act, omission, or other fault of the City, its officers, or employees.
5.3 Design/Builder's Insurance:
5.3.1. The Design/Builder agrees to procure and maintain, at its own expense, a policy or policies of insurance
sufficient to insure against all liability, claims, demands, and other obligations assumed by the Design/Builder pursuant
to Section 5.2 above. Such insurance shall be in addition to any other insurance requirements imposed by tlfis conlract or
by law. The Design/Builder shall not be relieved of any liability, claims, demands, or other obl/gations assumed pursuant
I~ ..... I II I I
to Section 5.2 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or
maintain insurance in sufficient mounts, duration, or types.
5.3.2. Design/Builder shall procure and maintain, and shall cause any Subconlractor of the Design/Builder to procure
and ma'mtain, the rnlnlrmma insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions
do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage
shall be procured and nffmtained with forms and insurance acceptable to City. All coverage shall be continuously
maintained to cover all liability, claims, demands, and other obligations assumed by the Design/Builder pursuant to
Section 5.2 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods
shall be procured to maintain such continuous coverage.
5.3.2.1. Workmen's Compensation insurance to cover obligations imposed by applicable laws for any
employee engaged in the performance of work under this contract, and Employers' Liability insurance with
minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status
may be substituted for the Worlanen's Compensation requirements of this paragraph.
5.3.2.2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The
policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury,
broad form properly damage (including completed operations), personal injury (including coverage for
con,actual 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.
5.3.2.3. C~mprehensive Aut~m~bile Liability insurance with mirinnum c~mbined sing~e ~iruits f~r b~dlly 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 conffm a severability 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 con~act.
5.2.2.4. Professional Liability Insurance with minimum limits of not less than F1VE HUNDRED
THOUSAND DOLLARS ($500,000.00) each cldtm and in the aggregate.
5.3.3. Except for any Professional Liability insurance that may be required, the policy or policies required above shall
be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every
policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not
contributory insurance to that provided by 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. The
Design/Builder shall be solely responsible for any deductible losses under any policy required above.
5.3.4. The certificate of insurance provided by the City of Aspen shall be completed by the Design/Builders
insurance agent as evidence that policies providing the required coverage, conditions, and minimum linaits are in full
force and effect, and shall be reviewed and approved by the City of Aspen prior to covzunencement of the cunlract. No
other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage
afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior
written notice has been given to the City of Aspen.
5.3.5. In addition, these Certificates of Insurance shall contain the following clauses:
Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the
intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage
for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may
become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of
recovery or subrogation against the Design/Builder.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
andeiwriters 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 ofpolicy.;~'"_~gn:e
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 ts done .... r ....... "^ n ................................
Certificates of Insurance for all renewal policies shall be dehvered to the City at least fifteen (15) days prior to
policy's expiration date except for any policy expiring on the expiration date of this agreement or thereafter.
5.3.6. Failure on the part of the Design/Builder 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 tiffs contract, or at its discretion City may procure or renew any such policy or any extended repotting 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 prem/ums against moneys duc to Design/Builder
fi:om City.
5.3.7. City reseIwes the right to request and receive a certified copy of any policy and any endorsement thereto.
5.4 City's Liability Insurance:
5.4.1. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing
Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA pohcies 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 CIRSA.
5.4.2. The parties hereto further understand and agree that City is relying on, and does not waive or intend to waive
by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by
the Colorado Governmental Immanity Act, Section 24-10-101 et seq., C.R.S., as fi:om time to time amended, or
otherwise available to City, its officers, or its employees. Further, nothing in the Contract Documents shall be construed
or interpreted to require or provide for indemnification of the 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 - DESIGN/BUILDER'S RESPONSIBILITIES
6.1 GeneralResponsibilities:
-ani "' 'rii:
6.1.1. Design services required by the Part 2 Agreement shall be performed by quahfied 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. The agreements between Design/Builder and the persons or entities identified in the Part
2 Agreement, and any subsequent modifications, shall be in writing. These agreements, including financial arrangements
with respect to this Project, shall be promptly and fully disclosed to the City.
6.1.2. The Design/Builder covenants and warrants that it shall be responsible for performing the Work, and that it
shall do or cause to be done the Work and services as required in the Contract Documents and any additional, collateral,
and incidental Work and services as may be necessary in order to complete the Project in accordance with the
requirements of the Contract Documents, shall be responsible for providing completed Work which meets the results
reqffaed by the Contract Documents, and shall ackieve Substantial Completion (100% of the Work) by the Contract
Time. The Design/Builder shall be responsible to City for acts and omissions of the Design/Builder's employees,
subcontractors and their agents and employees, and other persons, including Architect and other design professionals,
performing any portion of the Design/Builder's obligations under the Part 2 Agreement.
6.1.3. Consmaction services shall be performed in accordance with those professional standards listed in the Special
Conditions for quality and scope and shall be performed by the entities and persons, Subcontractors and specific
personnel identified in the Design/Builders Proposal in accordance with their respective degrees of participation
provided and represented to City. Other construction services shall be performed by qualified conslraction
Subcon~xactors and Suppliers, selected and paid by the Design/Builder. Nothing contained in the Contract Documents
shall be construed to create any obhgation or contractual liability running from the City to any of these persons or
entities.
6.2 Supervision and Superintendence:
6.2.1. The Design/Builder shall supervise and direct the Work competently and efficiently devoting such attention
thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract
Documents. The Design/Builder shall be solely responsible for the means, methods, techniques, sequences and
procedures of construction. The Design/Builder shall be responsible to see that the finished Work complies accurately
with the Con~xact Documents.
6.2.2. The Design/Builder shall keep on the Work at all times during its progress a competent resident superintendent,
who shall not be replaced without written notice to the City and the Engineer except under extraordinary circumstances.
The superintendent will be the Design/Builders representative at the site and shall have authority to act on behalf of the
Design/Builder. All cortmmnicatiom given to the superintendent shall be as binding as if given to the Design/Builder.
6.3 Labor, Materials and Equipment:
6.3.1. The Design/Bnllder shall provide competent, suitably qualified personnel to survey and lay out the Work and
perform construction as required by the Contract Documents. Thc Design/Builder shall at all times maintain good
discipline and order at the site. Except in connection with the safety or protection of persons or the work or property at
the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be
performed during regular working hours, and the Design/Builder will not permit overtime work or the performance of
Work on Saturday, Sunday or any legal holiday without the City's written consent given after prior written notice to the
Engineer.
6.3.2. Unless otherwise specified in the Specific Conditions or Specific Provisions, the Design/Builder shall furnish
and assume full responsibility for all materials, equipment, labor, transportation, conslruction equipment and machinery,
tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities
and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work.
6.3.3. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract
Docments. If required by the Engineer, the Design/Builder shall furnish satisfactory evidence (including reports of
required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied,
installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable
Supplier except as otherwise provided in the Contract Documents; but no provision of any such instractions will be
effective to assign to the Engineer, or any of the Engineer's consultants, agents or employees, any duty or authority to
supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility
conlrary to the provisions of paragraph 9.10.1. or 9.10.2.
6. 4. Services and Responsibilities.
6.4.1. Design services required by the Part 2 Agreement shall be performed by qualified architects and other design
professionals. The contractual obligations of such professional persons or entities are undertaken and performed in the
interests of the Design/Builder.
6.4.2. The agreements between the Design/Builder and the persons or entities in the Part 2 Agreement, and any
subsequent modifications, shall be in writing. These agreements, including financial arrangements with respect to the
Project, shall be promptly and fully disclosed to the City upon request.
6.4.3. The Design/Builder shall be responsible to the City for acts and omissions of the Design/Builder's employees,
subcona:actors 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 the Part 2 Agreement.
6. 5. ReservecL
6. 7. I~orh Schedule:
6.7.1. The Design/Builder shall submit to the Engineer for acceptance such schedule of work progress reports,
estimates, records, and other data as the City may require concerning work performed or to be performed.
6.7.2. Prior to beginning of Work and or before the Pre-construction Conference, the Design/Builder shall submit
schedules showing the order in which he/she proposed to cany on the Work, including dates at which he/she will start
the various parts of the Work, estimated date of completion of each part.
6.8 Substitutes of"or-equal"Items:
6.8.1. Whenever materials or equipment are specified or described in the Contract Documents by using the name of a
proprietary item or the name of a particular Supplier the naming of the item is intended to establish the type, function
and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or
equipment of other Suppliers may be accepted by the engineer if sufficient information is submitted by the
Design/Builder to allow the Engineer to determine that the material or equipment proposed is equivalent or equal to that
named. The Engineer will include the following as supplemented in the General Requirements. Requests for review of
substitute items of material and equipment will not be accepted by the Engineer fi.om anyone other than the
Design/Builder. If the Design/Builder wishes to furnish or use a substitute item of material or equipment, the
Design/Builder shall make written application to the Engineer for acceptance thereof, certifying that the proposed
substitute will perform adequately the functions and achieve the results called for by the genemi design, be similar and of
equal substance to that specified and be suited to the same use as that specified. The application will state that the
evaluation and acceptance of the proposed substitute will not prejudice the Design/Builder's achievement of Substantial
Completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the
Contract Documents (or in the provisions of any other direct contract with the City for work on the Project) to adapt the
design to the proposed substitute and whether or not incorporation or use nfthe substitute in connection with the Work is
subject to payment of any license fee or royalty. All variations of the proposed substitute fi.om that specified will be
identified in the application and available maintenance, repair and replacement service will be indicated. The
application will also contain an itemized estimate of all costs that will result directly or indirectly fi.om acceptance of
such substitute, including costs of redesign and claims of other Design/Builders affected by the resulting change, all of
which shall be considered by Architect in evaluating the proposed substitute. The Engineer may require the
Design/Builder to furnish at Design/Builder's expense additional data about the proposed substitute.
6.8.2. If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the
Contract Documents, the Design/Builder may furnish or utilize a substitute means, method, sequence, technique or
procedure of construction acceptable to the Engineer. The procedure for review by the Engineer shall be similar to that
provided in paragraph 6.8.1.
6.8.3. The Engineer will be allowed a reasonable time within which to evaluate each proposed substitute. The Engineer
will be the sole judge of acceptability, and no substitute will be ordered, installed or utilized without the Engineer's prior
written acceptance which will be evidenced by an approved Shop Drawing. The City may require the Design/Builder to
fia'nish at the Design/Builder's expense a special performance guarantee or other surety with respect to any substitute.
The Engineer will record time required by the Engineer and the Engineer's consultants in evaluating substitutions
proposed by the Design/Builder and in making changes in the Contract Documents occasioned thereby. Whether or not
the Engineer accepts a proposed substitute, the Desigu/Builder shall reimburse the City for the charges of the Engineer
and the Engineer's consultants for evaluating each proposed substitute.
6.9 Subcontractors, Suppliers and Others:
6.9.1. The Design/Builder shall not employ any Subcontractor, Supplier or other person or organization (including
those acceptable to the City and the Engineer as indicated in paragraph 6.9.2), whether iultially or as a substitute, against
whom the City or the Engineer may have reasonable objection.
6.9.2. If the Special Conditions require the identity of certain Subconlractors, Suppliers or other persons or
organizations including those who are to furn/sh the principal items of materials and equipment to be submitted to the
City in advance of the specified date prior to the Effective Date of the Agreement for acceptance by the City and the
Engineer and if the Design/Builder has submitted a list thereof in accordance with the Special Conditions, the City's or
the Engineer's acceptance (either in writing or by failing to make written objection thereto by the date indicated for
acceptance or objection in the bidding documents or the Contract Documents) of any such Subcontractor, Supplier or
other person or organization so identified may be revoked on the basis of reasonable objection after due investigation, in
which case the Design/Builder shall submit an acceptable substitute, the Contract Price will be increased by the
difference in the cost occasioned by such substitution and an appropriate Written Notice of Amendment signed. No
acceptance by the City or the Engineer of any such Subcontractor, Supplier or other person or organization shall
constitute a waiver of any right of the City or the Engineer to reject Defective Work.
6.9.3. The Desigu/Builder shall be fully responsible to the City and the Engineer for all acts and omissions of the
Subcontractors, Suppliers and other persons and organizations performing or fumistting any of the Work under a direct
or indirect contract with Design/Builder just as Design/Builder is responsible for Design/Builder's own acts and
omissions. Nothing in the Contract Docanaents shall create any contractual relationship between the City or the
Engineer and any such Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the
part of the City or the Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier or
other person or organization except as may otheradse be required by Laws and Regulations.
6.9.4. The divisions and sections of the Specifications and the identifications of any Drawings shall not conlrol the
Design/Builder in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by
any specific trade.
6.9.5. All Work performed for Design/Builder by a Subcontractor will be pursuant to an appropriate agreement
between the Design/Builder and the Subcontractor which specifically binds the Subcontractor to the Applicable terms
and conditions of the Contract Documents for the benefit of the City and the Engineer and contain waiver provisions as
required by Section 5.3. The Design/Builder shall pay each Subcontractor a just share of any insurance moneys received
by the Design/Builder on account of losses.
6.10 Subcontracting and Percentage of Work Awarded to Subcontractor(s):
6.10.1. The Design/Builder may utilize the services of specialty Subcontractors on those parts of the
Work, which under normal contracting practices, are performed by specialty Subconmtctors.
6.10.2. The Design/Builder shall not award Work to Subcontractor(s), in excess of forty nine percent (49%) of the
Conlxact Price. This condition shall be a minimum standard for a qualified Prime Design/Builder to perform within the
City rights of ways.
6.11 Patent Fees and Royalties;
The Design/Builder shall pay all license fees and royalties and assume all costs incident to the use in the performance of
the Work or the incorporation in the Work of any invention, design, process, product or device wh/ch is the subject of
patent rights or copyrights held by others. Design/Builder shall indenm/fy and hold harmless the City and the Engineer
and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses
(including attorney's fees and court costs) arising out of any infiSngement of patent rights or copyrights incident to the
use in the performance of the Work or resulting from the product or device not specified in the Contract Docments, and
shall defend all such claims in connection with any alleged infi'ingurnent of such rights.
6.12 Permits:
Un/ess otherwise provided in the Special Conditions, the Desigu/Builder shall obtain and pay for all construction
permits and licenses. The City shall assist the Design/Builder, when necessary, in obtain/ng such permits and licenses.
The Design/Builder shall pay all governmental charges and inspection fees necessary for the prosecution of the Work,
which are applicable at the time of opening of Bids on the Effective Date of the Contract. The Design/Builder shall pay
all charges of utility owners for connections to the Worlq and the City shall pay all charges of such utility owners for
capital costs related thereto such as plant investment fees.
6.13 Laws and Regulations:
6.13.1. the Design/Builder shall give all notices and comply with all Laws and Regulations applicable to furnishing
and performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither
the City nor the Engineer shall be responsible for monitoring the Desigu/Buildefs compliance with any Laws or
Regulations.
6.13.2. If the Desigu/Builder observes that the Specifications or Drawings are at variance with any Laws or
Regulations, the Design/Builder shall give the Engineer prompt written notice thereof, and any necessary changes will
be authorized by one of the methods indicated in paragxaph 3.4. If the Design/Builder performs any Work knowing or
having reason to know that it is conlrary to Laws or Regulations, and without such notice to the Engineer, the
Desigu/Builder shall bear all costs arising therefrom.
6.14 Taxes:
The Design/Builder shall pay all existing and future applicable Federal, State and local sales, consumer, use and other
similar taxes whether direct or indirect. Federal excise tax may not apply to materials purchased by the City. The
Contract Price shall include all other Federal, State, and/or local direct or indirect taxes which do apply. The Contract
Price shall include the cost of compliance with all other Federal Laws and Regulations at no additional cost to the City
(except as provided in the Contract Documents). The Desigu/Builder shall not be reimbursed separately for any taxes
which may apply except as provided in the Contract Documents and the Design/Builder shall be responsible for all taxes
which may apply. The City is tax exempt fi.om Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The
City is exempt from such taxes under regis~'ation numbers 98-02624. The Design/Builder and its Subcontractors shall
apply to the Colorado Department of Revenue for a Certificate of Exemption indicating that the Design/Builder or
Subcontractors purchase of construction material or building materials is for use in a building, structure, or other public
work owned and used by the City.
6.15 Use of Premises:
6.15.1. The Design/Builder shall confine construction equipment, the storage of materials and equipmem and the
operations of workers to the Project site and land and areas identified in, and permitted by, the Contract Documents and
other land and areas permitted by Laws and Regulations, rights-of-way, permits and easements, and shall not
unreasonably encumber the premises with construction equipment or other materials or equipment. The Design/Builder
sba11 assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any
land or areas contiguous thereto, resulting from the performance of the Work. Should any claim be made against the
City or the Engineer by any such owner or occupant because of the performance of the Work, Design/Builder shall
promptly settle with such other party by agreement or otherwise resolve the claim by law. The Design/Builder shall, to
the fullest extent permitted by Laws and Regulatiom, indemnify and hold the City and the Engineer harmless from and
against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys
and other professionals and court costs) arising directly, indirectly or consequentially out of any action, legal or
equitable, brought by any such other party against the City or the Engineer to the extent based on a claim arising out of
the Design/Builder's performance of the Work.
6.15.2. During the progress of the Work, the Design/Builder shall keep the premises free from accumulatious of waste
materials, mbbish and other debris resulting from the Work. At the completion of the Work, the Design/Builder shall
remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction
equipment and mackinery, and surplus materials, and shall leave the site clean and ready for occupancy by the City. The
Design/Builder shall restore to original condition all property not designated for alteration by the Contract Documents.
6.15.3. The Design/Builder shall not load or permit any part of any slmcture to be loaded in any manner that will
endanger the smmture, nor shall the Design/Builder subject any part of the Work or adjacent property to stresses or
pressures that will endanger it.
6.16 RecordDocuments:
The Design/Builder shall maintain in a safe place at the site one record copy of all Drawings, Specifications, Addenda,
Written Amendments, Change Orders, Work Directive Changes, Field Orders and written interpretations and
clarifications in good order and annotated to show all changes made during construction. These record documents
together with ali approved samples and a counterpart of all approved Shop Drawings will be available to the Engineer
for reference. Upon completion of the Work, these record documents, samples and Shop Drawings will be delivered to
the En~meer for the City.
6.17 Safety and Protection:
6.17.1. The Design/Builder shall be iespomible for initiating, maintaining and supervising all safety precautions and
programs in connection with the Work. The Design/Builder shall take all necessary precautions for the safety of, and
shall provide the necessary protection to prevent damage, injury or loss to:
6.17.1.1. All employees on the Work and other persons and orgamzations who maybe
affected thereby;
6.17.1.2. All the Work and materials and equipment to be incorporated therein, whether in
storage on or offthe site; and
6.17.1.3. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, road-
ways, structures, utilities and Underground Facilities not designated for removal, relocation or
replacement in the course of construction.
The Design/Builder shall comply with all apphcable Laws and Regulations of any public body having jurisdiction for
the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all
necessary safeguards for such safety and protection~ The DesigiffBuilder shall notify owners of adjacent property and of
Underground Facilities and utility owners when prosecution of the Work may affect them, and shall cooperate with them
in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property
referred to in paragraph 6.17.1.2 or 6.17.1.3 caused, directly or indirectly, in whole or in part, by the Design/Builder,
any Subcontractor, Supplier or any other person or organization directly or indirectly employed by any of them to
perform or ftn'nish any of the Work or anyone for whose acts any of them may be liable, shaI1 be remedied by the
Design/Builder. The Design/Builder's duties and responsibilities for the safety and protection of the Work shall continue
until such time as all the Work is completed and the Engineer has issued a notice to the City and the Design/Builder in
accordance with Section 14.5 that the Work is acceptable (except as otherwise expressly provided th connection with
Substantial Completion).
6.17.2. The Design/Builder shall designate a person competent in OSHA safety related matters at the site at all times
during construction whose duty shall be the prevention of accidents including confined space entry and work in the
confined spaces.
6.18 Emergencies:
In emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, the
Design/Builder, without special instruction or authorization from the Engineer or the City, is obhgated to act to prevent
threatened damage, injury or loss. The Design/Builder shall give the Engineer prompt written notice if the
Design/Builder believes that any significant changes in the Work or variations fi.om the Contract Documents have been
caused thereby. If the Engineer determines that a change in the Contract Documents is required because of the action
taken in response to an emergency, a written order will be issued to document the consequences of the changes or
variations.
6.19 Shop Drawings and Samples:
6.19.1. Afier checking and verifying all field measurements and after complying with applicable procedures specified
in the Contract Documents, the Design/Builder shall submit to the Engineer for review and approval in accordance with
the approved schedule of Shop Drawing submissions prior to Pre-construction Conference, or for other appropriate
action if so indicated in the Special Conditions, three (3) copies (unless otherwise specified) of all Shop Drawings,
which w/il bear a stamp or specific written indication that the Design/Builder has satisfied the Design/Builders
responsibilities under the Contract Documents with respect to the review of the submission. All submissions will be
identified as the Engineer may require. The data shown on the Shop Drawings will be complete with respect to
quantifies, dimensions, specified performance and design criteria, materials and similar data to enable the Engineer to
review the information as required.
6.19.2. The Design/Builder shall also submit to the Engineer for review and approval with such prompmess as to canse
no delay in Work, all samples required by the Conlract Documents. All samples will have been checked by and
accompanied by a specific written indication that the Design/Builder has satisfied the Design/Builders responsibilities
under the Contract Documents with respect to the review of the submission and will be identified clearly as to material,
Suppl/er, pertinent data such as catalog numbers and the use for which intended.
6.19.3. Before submission of each Shop Drawing or sample, the Design/Builder shall have determined and verified all
quantities, dimensions, specified performance criteria, installation requirements, materials, catalog numbers and similar
data with respect thereto; and reviewed or coordinated each Shop Drawing or sample with other Shop Drawings and
samples and with the requirements of the Work and the Contract Documents.
6.19.4. At the time of each submission, the Design/Builder shall give the Engineer specific written notice of each
variation that the Shop Drawings or samples may have from the requirements of the Contract Documents, and, in
addition, shall cause a specific notation to be made on each Shop Drawing submitted to the Engineer for review and
approval of each such variation.
6.19.5. The Engineer will review and approve with reasonable promptness Shop Drawings and samples, but the
Engineer's review and approval will be only for conformance with the design concept of the Project and for compliance
with the information given in the Contract Documents and shall not extend to means, methods, techniques, sequences or
procedures of conslruction (except where a specific means, method, technique, sequence or procedure of constraction is
indicated in or required by the Contract Documents) or to safety precautions or programs incident thereto. The review
and approval of a separate item as such will not indicate approval of the assembly in which the item functions. The
Design/Builder shall make corrections required by the Engineer, and shall remm the required number of corrected
copies of Shop Drawings and submit as required new samples for review and approval. The Design/Builder shall direct
specific attention in writing to revisions other than the corrections called for by the Engineer on previous submittals.
6.19.6. The Engineers review and approval of Shop Drawings or samples shall not relieve the Design/Builder fi.om
responsibility for any variation fi.om the requirements of the CunUact Documents unless the Design/Builder has in
writing calIed the Engineer's attention to each such variation at the time of submission as required by paragraph 6.19.4
and the Engineer has given written approval of each such variation by a specific written notation thereof incorporated in
or accompanying the Shop Drawing or sample approval; nor will any approval by the Engineer relieve the
Design/Builder from responsibility for errors or omissions in the Shop Drawings or from responsibility for having
complied with the provisions of paragraph 6.19.3.
6.19.7. Where a Shop Drawing or sample is required by the Specifications, any related Work performed prior to the
Engineer's review and approval of the pertinent submission will be the sole expense and responsibility of the
Design/Builder.
6.20 Mechanics'Liens:
6.20.1. The Design/Builder covenants and agrees that, to the extent permitted by law, no claims or mechanics' liens
against public funds (mechanic's liens) or claims of any kind, will be permitted to arise, be filed or maintained against
the Project or any part of it, any interest in it or any hnprovements on it, against any moneys due or to become due from
the City to the Design/Builder, for or on account of any work, labor, services, materials, equipment or other items
performed or furnished for or in connection with the Project, and the Design/Builder for itself, its Subcontractors,
laborers and material suppliers and employees does waive, release and relinquish these claims or liens and all fights to
file or maintain these liens and agrees further that tbs waiver of liens and waiver of the right to file or maintain liens
shall be independent covenant and shall apply also to work, labor, services performed, materials, equipment and other
items furnished under any Change Order or supplemental agreement for extra or additional work in connection with the
Project. The Design/Builder agrees to defend, indenmify, protect and save harmless the City from and against any and
all claims or hens and actions brought or judgments rendered, and fi.om and against any and all loss, damages, hability,
costs and expenses, including legal fees and disbursements, which the City may sustain or incur in connection with the
Project.
6.20.2. The Design/Builder also agrees as above for all of its Subcontractors, including but not limited to suppliers and
employees. If any of the Design/Builder's Subcontractors, suppliers, employees or any other person directly or indirectly
acting for, through or under its authority or any of them files or maintains a lien or clffun as described above, the
Design/Builder agrees to cause chfmas or liens to be satisfied, removed or discharged at its own expense by bond,
payment or otherwise within thir~ (30) consecutive calendar days fi*om he date of the filing, and upon the
Design/Builder's failure to do so the City shall have the right, in addition to all other rights and remedies provided under
this Contract or by law, to cause the liens or claims to be satisfied, removed or discharged by whatever means the City
chooses, at the entire cost end expense of the Design/Builder, the expense to include legal fees and disbursements. The
Design/Builder shall give a copy of Claim Release form to all Subcontractors and suppliers and shall include these
provisions in all written contracts with Subcontractors, or give written notice to all Subcontractors, suppliers or other
persons having oral agreements with the Design/Builder.
6.20.3. The Design/Builder agrees that moneys received for the performance of this Contract shall be used first for
payment due for labor, material, and services for the Project and taxes, and the moneys shall not be diverted to satisfy
obligations of the Design/Builder on other accounts or contracts. The Design/Builder shall pay Subcontractors within
Ten (10) consecutive calendar days of receipt of a progress payment fi.om the City. The Design/Builder shall furnish
sworn affidavits in accordance with the form furnished by the City, which shall state that amounts due or to become due,
amounts paid, and any other information necessary to indicate the financial condition of the Design/Builder, insofar as it
relates to services, labor and material furnished, and to be furnished, under this Contract. The City may take steps it may
deem necessary to protect itself against any claims.
6.21 Continuing the Work:
The Design/Builder shall carry on the Work and adhere to the progress schedule during all disputes or disagreements
with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as
permitted herein or as the Design/Builder and the City may othexwise agree in writing.
6.22 Design/Builder Facilities:
All temporary Design/Builder facilities shall be in accordance with regulations and codes governing such construction.
The types of temporary construction facilities required for the Project may include, but are not necessarily limited to, the
following: (a) job site office space, (b) construction water distribution, (c) temporary closures, (d) temporary heat, (e)
hoists and temporary cranes, (f) temporary roads and paving, (g) construction aids and miscellaneous facilities, (h)
temporary power distribution, (i) temporary lighting, (j) temporary toilet facilities. All operations of the Design/Builder,
including storage of materials, upon the City's premises shall be confined to areas authorized or approved by Owner in
writing. Tempora~ buildings, storage sheds, shops, offices, may be erected by the Design/Builder only with the written
approval of the City and shall be built or provided with labor and materials fum/shad by the Design/Builder without
expense to the City. Such temporary buildings and utilities shall remain the property of the Design/Builder and shall be
removed by it at its expense upon completion of the Work.
ARTICLE 7 - OTHER WORK
7.1 Related Work at Site:
7.1.1. The City may perform other work related to the Project at the site by the City's own forces, have other work
performed by utility owners or let other direct contracts therefor winch shall contain General Conditions similar to these.
The Design/Builder shall perform and coordinate ins/her activities with other Design/Builders to avoid conflict and
min/mize disruptions.
7.1.2. The Design/Builder shall afford each utility owner and other Design/Builder who is a party to such a direct
contract (or the City if the City is performing the additional work with the City's employees) proper and safe access to
the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of
such work, and shall properly connect and coordinate the Work with theirs. The Design/Builder shah do all cutting,
fitting and patching of the Work that may be required to make its several parts come together properly and integrate with
such other work. The Design/Builder shall not endanger any work of others by cutting, excavating or otherwise altering
their work and will only cut or alter their work with the written consent of Arcintect and the others whose work will be
affected. The duties and responsibilities of Design/Builder under tins paragraph are for the benefit of such utility owners
and other Design/Builders to the extent that them are comparable provisions for the benefit of the Design/Builder in said
direct contracts between the City and such utility owners and other Design/Builders.
7.1.3. If any part of the Design/Builders Work depends for proper execution or results upon the work of any such
other Design/Builder or utility owner (or the City), the Design/Builder shall inspect and promptly report to the Eng/neer
in writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper
execution and results. The Design/Builder's failure to report such conditions will constitute an acceptance of the other
work as fit and proper for integration with the Design/Builder's Work except for latent or non-apparent defects and
deficiencies in the other work.
7.2 Coordination:
If the City contracts with others for the performance of other work on the Project at the site, the person or orgauization
of the activities among the various prime Design/Builders may be identified in the Special Conditions, and the specific
matters to be covered by such authority and responsibility may be itemized, and the extent of such authority and
respons~ilities may be provided, in the Special Conditions. Unless otherwise provided in the Special Conditions,
neither the City nor the Engineer shall have any authority or responsibility in respect of such coordination.
ARTICLE 8 - CITY'S RESPONSIBILITIES
8.1. The City shall issue all communications to the Design/Builder through the Engineer or his/her designated
person.
8.2. The City shall furnish the data required of the City under the Conlxact Documents promptly and shall make
payments to the Design/Builder through processing of the monthly Progress Pay Estimate forms within 30 days fi.om the
cut-offdate for a pay estimate form
8.3. The City represents that an amount of money equal to the Contract Price has been duly appropriated in
accordance with the Municipal Code of the City of Aspen, under a purchase order. The City shall not issue any Change
Order or execute a Written Amendment requiring additional compensable work, which work causes the aggregate
amount appropriated by the City, unless the Design/Builder is given a written assurance that a lawful appropriations to
cover the costs of the additional work shall be made.
ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION
9.1 City'sRepresentative:
The Engineer shall be the City's representative during the construction period. The duties and responsibilities and the
lirdtations of authority of the Engineer as the City's representative during construction are set forth in the Con~act
Documents and shall not be extended without written consent of the City and the Engineer.
9.2 Visits to Site:
The Engineer shall make visits to the site at intervals appropriate to the various stages of construction to observe the
progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with
the Contract Documents. The Engineer shall make on-site inspections to observe the quality or quantity of the Work.
The Engineer's efforts will be directed toward providing for the City a greater degree of confidence that the completed
Work will conform to the Contract Documents. On the basis of such visits and on-site observations, the Engineer will
keep the City informed of the progress of the Work and will endeavor to guard the City against defects and deficiencies
in the Work.
9.3 Project Representation:
If the City and the Engineer agree, the Engineer will furnish a Resident Project Representative to assist the Engineer in
observing the performance of the Work. The duties, responsibilities and limitations of authority of any such Resident
Project Representative and assistants will be to ensure conformance of work with specifications provided in the Special
Conditions. If the City designates another agent to represent the City at the site who is not the Engineer's agent or
employee, the duties, responsibilities and limitations of authority of such other person will be as provided in the Special
Conditions.
9.4 Clarification andlnterpretations:
The Engineer will issue with reasonable promptness such written clarifications or interpretations of the requirements of
the Contract Documents (in the form of Drawings or otherwise) as the Engineer may determine necessary, which shall
be consistent with or reasonably inferable fi.om the overall intent of the Contract Documents. If a written clarification or
interpretation justifies an increase in the Cun~act Price or an extension of the Contract Time, the Design/Builder shall
meet with the Engineer and resolve the issue. All such requests or claims shall be submitted to the City Engineer.
9.5 Authorized Variations in Work and Minor Contract Revisions:
The City Engineer may request or authorize minor variations in the Work fi.om the requirements of the Contract
Documents which do not involve an adjnstment in the Contract Price or the Contract Time and are consistent with the
overall intern of the Contract Documents. These may be accomplished by a written request or a field order and will be
binding on the City, and also on the Design/Builder who shall perform the Work involved promptly. If the
DesigffBuilder beheves that a field order jnstifies an extension of the Contract Time and the parties are unable to agree
as to the extent thereof, the Design/Builder may make a claim therefor as provided herein.
9.6 Rejecting Defective Work:
The Engineer will have authority to disapprove or reject Work which the Engineer believes to be Defective, and will
also have authority to require special inspection or testing of the Work as provided herein below, whether or not the
Work is fabricated, installed or completed.
9. 7. Shop Drawings, Change Orders and Payments:
9.7.1. In connection with the Engineer's responsibility for Shop Drawings and samples, see paragraphs 6.19.1.
through 6.20.1. inclusive.
9.7.2. In connection with the Engineer's responsibilities as to Change Orders, see Article 10 and Article 11.
9.7.3. In connection with the Engineer's responsibilities in respect of request for Payment, etc., see Article 14.
9.8 Decisions on Disputes:
9.8.1. The Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the
acceptability of the Work thereunder. Claims, disputes and other matters raised by Design/Builder relating to the
acceptability of the Work or the interpretation of the requirements of the Contract Documents pertaining to the
performance and furnishing of the Work and claims under Articles 11 and 12 in respect to changes in the Contract Price
or Contract Time shall be referred initially to the Engineer in writing with a request for a formal decision in accordance
with this paragraph, which the Engineer will render in writing within a reasonable time. Written notice of each such
clalir~ dispute and other matter by the Design/Builder will be delivered to the Engineer promptly (but in no event later
than thirty days) at, er the occurrence of the event giving rise thereto, and written supporting data will be submitted to the
Engineer and the City within s/xty days aRer such occurrence unless the Engineer allows an additional period of time to
ascertain more accurate data in support of the clam
9.8.2 The rendering of a decision by the Engineer pursuant to paragraph 9.8.1. with respect to any such claim, dispute
or other matter shall be a condition precedent to any exercise by the Design/Builder of such rights or remedies as the
Design/Builder may otherwise have under the Contract Documents or by Laws or Regulations in respect of any such
claim, dispute or other matter. The City shall not be bound by any initial interpretation by the Engineer of the
requirements of the Contract Documents, judgment on the acceptability of the Work thereunder, or formal decision
made by the Engineer in accordance with paragraph 9.8.1. Any dispute not resolved by the initial decision of the
Engineer shall be decided by the City, who shall reduce the decision in writing and furnish a copy thereof to the
Design/Builder and the Engineer. The decision of the City shall be final subject to review by the Pitkin County District
Court in Pitldn County, Colorado. Pending final decision of a dispute hereunder, the Design~Builder shall proceed
diligently with the performance of the Work and in accordance with the Engineer's interpretation.
9.9 Reserved
9.10 Limitations on Engineer's Responsibilities:
9.10.1. Neither the Engineer's authority to act under this Article 9 or elsewhere ia the Contract Documents nor any
decision made by the Engineer in good faith either to exercise or not exercise such authority shall give rise to any duty or
responsibility of the Engineer to the Design/Builder, any Subcontractor, any Supplier, or any other person or
organization performing any of the Work, or to any surety for any of them
9.10.2. Whenever in the Conlract Documents the terms "as ordered", "as directed", "as required", "as allowed", "as
approved" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or
....... -ii- r' I
"satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review or judgment of
the Engineer as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate
the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise). The
use of any such term or adjective shall not be effective to assign to the Engineer any duty or authority to supervise or
direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the
Contract Documents.
ARTICLE 10 - CHANGES IN THE WORK
10.1 Ci~ lnitiated Changes
10.lA. The City may require, without notification to sureties, the Design/Builder to perform changes, additions or
deletions to the Work at anytime after execution of the Contract without invalidating the Contract. Changes shall be
accomplished as set forth in Section 3.2, above.
10.1.2. The Design/Builder shall promptly perform changes in the Work in accordance with applicable provisions of
the Contract Documents, unless otherwise provided in a Change Order or Amendment to the Design/Build Agreement.
10.1.3. The following procedure shall be followed for the City notifying the Design/Builder of proposed City initiated
changes. The Engineer shall issue a notice informing the Design/Builder of a planned change in the Work and its scope,
and requesting the Design/Builders detailed price proposal. The Design/Builder, at no expense to the City, shall submit
a priced proposal for performing the proposed change in the Work. The Design/Builder, within Ten (10) consecutive
calendar days after receiving the Notice of Change, or such longer time which the Engineer in his/her discretion has
granted, shall provide the Engineer with a complete and itemized proposal which includes the estimated increase or
decrease in the Contract Price and/or hi the Contract Time attributable to the planned changes on the criteria and
methods described in Article I 1. The Design/Builder shall be responsible for delays to the Work and any additional
costs incurred by the City caused by its failure to submit complete pricing information within the time provided above.
The Design/Builder shall participate with the City in prompt joint analysis and negotiations to fmalize a Change Order,
if necessary.
10.2 Written Notice of Change
10.2.1. A Written Notice of Change may be used when:
a)
The City determines that the Design/Builder must proceed mediately to perform a change in the
Work in order to avoid an adverse impact on the schedule or other unchanged Work, and sufficient
time is not available to negotiate an adjuslment to the Contract Price or Contract Time; or
b)
The City and Design/Builder have not completed their negotiation and reached agreement on all of
the terms of a Change Order, but the City requires the Design/Builder to proceed without such
agreement.
10.2.2. Upon receipt of a Written Notice of Change the Design/Builder shall promptly proceed with performing the
change in the Work. Additionally, the Design/Builder shall comply with all the requirements of 10.3 of these General
Conditions.
10.3 Change Order
When the Design/Builder and the City reach agreement on the adjustments to the Contract Price and/or Contract Time,
such agreements shall be promptly recorded in an executed Change Order.
10.4 Design/Builder Change Request
10.41. If the Design/Builder: (i) receives any oral or written instructions, directives or interpretations of Contract
Documents, or determinations firom the Engineer or, (ii) identifies what it believes are design errors or omissions in the
Contract Drawings or Specifications, or (i/i) encounters a differing site condition; or, (iv) is delayed in the progress of
the Work; or, (v) becomes aware of any other matter or circumstance which it believes would require a change hi the
Contract Price or Contract Time, the Design/Builder shall give the Eng/neer prompt written notice of such matters in a
letter or notice denominated "Design/Builder Change Request".
10.4.2. All Design/Builder Change Requests shall be dated, numbered sequentially, and shall describe the action or
event which the Design/Builder believes may requke an extension in time or price. The Design/Builder shall also
provide descriptions of possible Design/Builder actions or solutions to miuimize the cost of the Design/Builder Change
Request and, provide an estimate of the adjustment in the ConWact Price and/or Contract Time which it believes is
appropriate.
10.4.3. With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any errors or
omissions in the Contract Documents, a Design/Builder Change Request shall be submitted before the Design/Builder
acts on them, but in no event more than Ten (l O) consecutive calendar days alter they were received or discovered.
10.8.4. With respect to any differing site conditions, a Design/Builder Change Request shall be submitted before the
conditions are disturbed, but in no event more than Ten (10) consecutive calendar days alter the conditions are fa'st
discovered.
10.4.5. With respect to delays, a Design/Builder Change Request shall be submitted as soon as the Design/Builddr has
knowledge of the delay, but in no event more than Ten (10) consecutive calendar days therefi'om.
10.8.6. With respect to any matters or circumstance which the Design/Builder beheves would require a change,
including delays, a Design/Builder Change Request shall be submitted as soon as the Design/Builder has knowledge of
the matter or circumstance, but in no event more than Ten (10) consecutive calendar days alter the Design/Builder
becomes aware of such circumstance or matter.
10.5 Down Time:
The Design/Builder may be granted time extension for down tirne. No other compensation of any kind shall be made to
the Design/Builder for down time. Equipment failure, lack of adequate labor or tools or materials to perform the Work
shall not constitute down time.
10.6 Submittal Requirements and Waiver of Claims
10.6.1. If the Design/Builder does not submit a Design/Builder Change Request within the time required above, any
action by the Design/Builder related to such order, direction, instruction, interpretation, determination, design error or
omission, or other matter, including delays or differing site conditions, will not be considered by the City as a change to
the Work and the Design/Builder waives any claim for an adjuslment on the Contract Price or the Contract Time.
10.6.2. The Design/Builder shall, within Ten (10) consecutive calendar davs submit in detail, a Design/Builder
Change Request, and provide the Engineer a complete and itemized proposal which contains the information described
in Article 11. The proposal shall also contain a detailed explanation, citing ail applicable provisions in the Contract
Documents, which supports the Design/Builder Change Request. If the Design/Builder does not submit its itemized
proposal within the time described above or within such extension which the Eng/neer, in his/her discretion may have
granted in writing, it waives any claim for an adjustment in the Contract Price or Contract Time arising out of the act or
event described in the Contract Change Request.
10.6.3. Ifa Design/Builder Change Request is den/ed by the Engineer, hi whole or in part, any claim for an increase in
the Contract Price or Contract Time arising out of the act or event described in the Design/Builder Change Request is
waived unless the Design/Builder timely complies with the provisions of paragraphs 10.4.1. through 10.4.6.
ARTICLE 11. CHANGE OF CONTRACT PRICE OR CONTRACT TIME
11.1 Contract Price Adjustments.
All adjustments to the Contract Price shall be determined by using one or more of the following methods:
11.1.1 A negotiated lump sum for work items that cannot be itemized. The Design/Builder shall promptly provide
sufficient substantiating data, including calculations, measurements, cost records, production rates, equipment types and
capacity, labor costs by craft and other information wtfich the City may reasonably require the Design/Builder to
produce in order to permit the City to evaluate the Design/Builder's lump sum change order proposals. In pricing this
proposal, the Design/Builder shall include estimates of the type of costs described in Section 11.4 below.
11.1.2 Unit prices stated in the Contract Documents or subsequently agreed upon multiplied by final verified quanti-
fies of work performed;
11.1.3 Cost to be determined in a manner agreed upon by the patties wh/ch includes markups that do not exceed those
set forth in Section 11.4 below.
11.1.4 Costs to be determined in the manner described in Section 11.3.1.
11.2 Contract Time,4djustments.
11.2.1. Any extension of the Contract Time mnst be requested in a DesigtffBuilder Change Request which complies
with ali of the requirements of paragraphs 10.4.1 through 10.4.6. Failure to strictly comply with the timing and
submittal requirements shall constitute a waiver of any request or claim.
11.2.2. If the Design/Builder is delayed at any time in the progress of the Work and such delay was caused, in whole or
in part, by the act or omission of the City, or by changes ordered in the Work pursuant to strikes, lockouts, fire, unnsnal
delay by common carriers, unavoidable casualties, or any other causes beyond the Design/Builders control, then the
Contract Time shall be extended by the City. Such extensions will be for a period of time as the City may in its
discretion determine, provided however that such delay could not have been avoided by the exercise of due diligence by
the Design/Builder and did not result from the acts or omissions of the Design/Builder and, provided further, that they
Design/Builder has taken reasonable actions to mitigate or prevent further delays resulting from such causes.
11.2.3. If abnormal weather conditions are the basis for a claim for an extension of the Contract Time, such claim shall
be documented on the City of Aspen Engineering Deparlment's Daily Cons~xuction Log forms substantiating that
weather conditions were unusually severe for the period of time, and could not have been reasonably anticipated.
Regardless of actual weather conditions, any day in which the Design/Builder is able to work Sixty Percent (60%) or
more of its scheduled work force shall not be counted as an abnormal weather day for purposes of calculating weather
related time extensions.
11.2.4. The Design/Builder at~'ees that delays resulting fi'om any causes other than acts or omissions of the City, its
employees, agents or officials shall be considered fully compensated by a time extension only and agrees to make no
claim for monetary damages for such delays. In no event shall the Design/Builder be entitled to recover any delay costs
caused by the acts or omissions of the Design/Builder, its employees or agents.
11.2.5. If the Design/Builder believes that it has suffered delays in performing the Work that are caused by acts or
omssions of the City, the Design/Builder may submit a Design/Builder Change Request with detailed justifications
acceptable to the Engineer. Failure of the Design/Builder to comply with ali requirements shall constitute a waiver of
any claim for damages resulting from such delays.
11.3 ForceAccount Work.
11.3.1 In situations where the cost or time for performing a required change cannot be adequately defined or agreed
upon but the changed Work must proceed, the City may direct the Design/Builder to perform the Work on a Force
Account basis. Adjuslraent shall be determined on the basis of reasonable expenditures and savings of those performing
the change in the Work including, in case of an increase in the Contract Amount, an allowance for overhead and profit
which shall not exceed the allowance described in 11.4.7 below. In such case, the Design/Builder shall keep and
present, in such form as the City may prescribe, an itemized detailed accounting together with appropriate supporting
data of all of the costs described hi Section 11.4.1 through Section 11.4.4 which clearly distinguishes the cost of changed
Work from base contract Work. Information which shall be required on these forms includes an itemization of all costs
for labor, materials and equipment rental and total costs to date for force account work. The Design/Builder shall
include hours worked, rates of pay, names and job classifications for all workers and size, type, identification number,
rental rote and hours of operation for equipment.
11.3.2 Unless otherwise provided in the Contract Documents, costs for the purposes of Force Account Work shall be
itemized daily on Daily Force Account Forms provided by the Engineer which are signed by the Design/Builder and the
Engineer. Such costs shall form the basis for determining the maximum amount to be paid the Design/Builder, but this
mount may be reduced where necessary to take into account the cost of base contract Work, Work included in
approved Change Orders, Work described in Work Directive Changes, idle time for workers and/or equipment when
work could have been performed in other locations or the number of workers or amount of equipment provided exceeds
the number or amount required to perform the Work, unsatisfactory Work or Work which may be performed
concurrently with the changed Work and which cannot be easily segregated from the changed Work. The worker hours,
equipment hours, and materials installed shall be logged on the City of Aspen Engineering Department's Dally
Conslxuction Log form for every day the work is performed.
11.4 Contract Sum Determination
11.4 In no event shall the charge or credit to the City associated with any change exceed the sum of the following:
11.4.1 Direct Labor. Actual net direct increase or decrease in the cost of the Design/Builder's labor for all work
associated with the change. Design/Builders labor shall be limited to Davis-Bacon Act work categories or other labor
(including salaried field personnel) that perform the individual change in Work thll-time. For shop work, the direct
labor includes workers who work directly on the item being manufactured or operators of equipment being used to
handle items being manufactured.
11.4.2 Labor Burden. Design/Builder's actual costs for workers compensation and liability insurance, payroll taxes,
social security and employees fi'inge benefits (including employer paid health insurance) imposed on the basis of
payrolls. This burden must reflect the variability of some burdens, i.e., social security. The burden shall include all
small tools which cost less than $200 apiece.
11.4.3 Direct Material, Supplies, Installed Equipment. Actual net direct cost of materials, supplies and equipment
incorporated in or consumed by the Work. If actual costs are not available, the cost shall be the lowest commercially
available price including all discounts and rebates and all applicable taxes. Cost shall be based on buying the material,
supplies and equipment in the largest practical quantity to receive quantity discounts.
11.4.4 Equipment. Actual net cost to the Design/Builder of owned and/or rented equipment other than small tools, to
be determined using the following method(s):
(1) Owned equipment operating costs shall be determined using accepted industry standard
forms and methods for "Owning and Operating Equipment" as described by the U.S. Army Corps of
Engineers (COE) in its latest edition of the "ConsU-uction Equipment Ownership and Operating
Expense Schedule, Reg/on V" (Document No. EP 1110-1-8, Volume 5).
(2) Rental equipment costs shall be determined using actual invoiced rates less all discounts for
bare equipment rental. Operating costs will be determined based on rates in the above-cited C.O.E.
manual.
I'l
(3) Mobil/zation/demobilization costs will be paid if the equipment is mobilized exclusively for
Work described in a change requested by the Engineer or a Change Order. If the equipment is used
on base conUact work, no mobilization or demobilkation cost will be paid.
Mobilization/demobilization cost will be based on using the least expensive means to mobilize or
demobilize. Equipment shall be obtained from the nearest available source. When the least
expensive methods are used, then costs shown in the actual invoice will be the basis for pricing.
11.4.5 Bonds, Insurance, Permits and Taxes. Actual increases or decreases in the cost of premiums for all bonds and
insurance, permit fees, and saies, use or similar taxes related to the Work.
11.4.6 Subcontract Costs. Net cost of Subcontractor work at any tier, provided that the cost of the Subcontractor is
determined in accordance with the above requirements. When possible, the Design/Builder shall obtain quotes fi'om two
or more Subcontractors.
11.4.7 Overhead and Profit.
(1) Ten percent (10%) of the sum of Section 11.4.1 through Section 11.4.5 above, to cover a
profit for Work performed by that Design/Builder or Subcontractor.
(2) Two percent (2%) of Section 11.4.6 above to cover Design/Builder's and SubconWactor's
overhead and profit for work performed by the Design/Builder or Subcontractor.
(3) Neither the Design/Builder nor any SubconWactor, nor the City in the case of a credit, will
attempt to apply these percentage adjustments in a way which would pyramid either the cost or credit
because a Subcontractor or Subcontractors at any tier are involved.
11.4.8 Totals as Equitable Adiustment. The Design/Builder agrees that the total of the above constitutes an equitable
adjustment for any and all damages resulting from a change or due to delay or disruption caused by the City. The
Design/Builder's choice of idling and Down Time shall not constitute an City's cause for delay or disruption.
11.5 Cost and Pricing Data
11.5.1 Certificate of Current Cost or Pricing Data. The Design/Builder shall submit a Certificate of Current Cost or
Pricing Data with any agreed upon Contract Price adjustment, but prior to the execution of a Change Order for the work,
in the following format:
Certificate of Current Cost and Pricing Data
This is to certify that, to the best of my knowledge and belief, the cost of
pricing data submitted in writing to the City in support of
_ are accurate, complete, and current as of
** and represent the best prices available from suppliers and
Subcontractors. This certification includes the cost of pricing data sup-
porting any advance agreements and forward pricing rate agreements
between the offer or and the City that are part of the proposal.
Firm
Name
Title
Date
* Identify the appropriate number of the Change Notice.
** Date when pricing negotiations were concluded and price agreement
was reached.
*** Date of signing, which should be as close as practicable to the date
when the price negotiations were concluded and price agreement reached.
11.5.2 Vendor Statements. The Design/Builder shall submit in support of all items which are not unit prices or lump
sum prices established by the Contract, statements by the affected vendors that the prices are not hi excess of those
previously charged to the City or the supplier's regular commercial customers for the same items.
11.5.3 Price Reductions for Defective Costs or Pricing Data. If it is later determined that pricing adjuslments to the
Contract were not correct due to incomplete or inaccurate pricing data by the Design/Builder or any Subcontractor or
supplier or that lower prices were readily available, the price shall be reduced accordingly and the Contract modified by
a Change Order.
11.6 Variation in Quantity of Unit Priced Items:
Where the quantity of a unit-priced item in this Contract is an estimated quantity and the actual quantity of the unit-
priced item varies more than 25 percent above or below the estimated quantity, an equitable adjustment in the Contract
Price may be made by a written Change approved by the Design/Builder and the Engineer. The equitable adjustment
shall be based upon any increase or decrease hi cost due solely to the variation above 125 percent or below 75 percent of
the estimated quantity. ~ll~e City at any time a~cr the award of the Contract, may delete Bid items, provided that the
total of such deletions does not exceed twent~ five percent (25%) of the total Contract Price, and such deletions will not
justify an increase in other Bid prices. If the quantity variation is such as to cause an increase in the time necessary for
completing the Work the Design/Builder may request in writing, an extension of time only.
ARTICLE 12 - Reserved
ARTICLE 13 - WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS;
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
CORRECTION,
13.1 Warranty:
13.1.1. The Contractor warrants and guarantees to City that all Work, whether supplied, furnished, installed, provided,
or performed by Contractor, a Subcontractor, or Supplier, will be in accordance with the Contract Documents and will
not be Defective. All Defective Work, whether or not in place, must be rejected, corrected or accepted as provided in
this Article 13. Work shall be performed in a skillful and workmanlike manner. Except where longer periods of warranty
are indicated for certain items, Contractor warrants Work, whether fumishad, installed, provided, performed or supplied
by Contractor, a Subcontractor or Supplier, to be flee fi.om faulty materials and workmanship for a period of not less
than One Year fi.om date of Substantial Completion, which One Year period shall be covered by the Maintenance
Bond and Payment Bond as specified in the Contract Documents. Landscaping replacement shall be warranted for two
growing seasons.
13.1.2. The Design/Builder, at no additional expense to the City, shall remedy damage to equipment, the site, or the
buildings or the contents thereof which is the result of any failure or defect in the Work, and restore any work damaged
in fulfilling the requirements of the Contract Documents.
13.1.3. With respect to all warranties, express or implied, from Subcontractors, manufacturers, or Suppliers for Work
performed and materials fundshed under the Agreement, the Desigu/Builder shall:
13.1.3.1. Obtain all warranties that would be given in normal conmiercial practice. To the extent that the
Subcontractor's, mxnufacturefs, or Supplier's, standard warranty exceeds the minimum City
requirements as set forth in this Article or elsewhere in the ConWact Documents, the
Subcontractor's, manufacturer's, or Supplier's standard warranty shall apply. Otherwise, the
Design/Builder shall be responsible for a Two Year term under the Maintenance Bond.
13.1.3.2. Require all warranties to be executed, in writing, for the benefit of the City, if directed by the
Engineer or.
13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the Engineer.
13.1.3.4. Assign ali warranties and guarantees in writing to the City upon the request of the City.
13.1.4. Notwithstanding anytb2ng to the contrary above, the Design/Builder shall warrant that all equipment which are
incorporated into the Work or any subsystem shall be new, fi'ee fi'om liens and defects in design, have clear title, be flee
from faulty materials and workmanship, and shall conform in ali aspects to the terms of the Contract Documents, to the
drawings issued for manufacture by the Design/Builder, and shall be in conformance with the Technical Specifications
and Design/Builder's Proposal (except in those instances where the Design/Builder's ProposaI has been amended by
subsequent TechnicaI Specifications). Unless the warranty period is otherwise extended or modified, the following
warranty shall apply. If within Five (5) Years fi'om the date each piece of equipment incorporated into the Work or any
subsystem is accepted by the City, it appears that the equipment or any part thereof does not conform to the above
warranty and guarantee provisions, and the City so notifies the Design/Builder within a reasonable time after its
discovery, the Design/Builder shall thereupon promptly correct such nonconformity to the satisfaction of the City, at the
Design/Builder's sole expense; failing which the City may reject the item and cover by purchasing substitute items or the
City may proceed to make corrections or accomplish the Design/Builder's performance by the most expeditions means
available, the cost of cover or correction shall be charged to the Design/Builder.
13.1.4.1. The preservation, packaging, packing, and marking, and the preparation for, and method of, shipment
of such equipment shall conform with the requirements of the Contract Documents.
13.1.4.2. When return, corrections, or replacement is required, transportation charges and responsibility for the
supplies and equipment while in mit shall be borne by the Design/Builder.
13.1.5. In addition to the foregoing, in the event that any single component in the Work experiences failures during the
warranty period such that the number of failures under normal service conditions exceeds ten pement (10%) of the Work
population of that component, the Design/Builder shall perform a design defects analysis. If the analysis shows the
component design to be defective, the component shall be redesigned, and the entire population of that component shall
be replaced and/or retrofitted.
I3.1.6. Whenever there is a conflict between the warranties required by the Contract Documents and the warranty
provided by a Subcontractor, manufacturer or Supplier, the terms and conditions of the warranty that affords the City the
greatest protection shall be binding upon the Design/Builder.
13.1.7. The above warranties or other warranties agreed to by Design/Builder shall not limit the City's rights under other
provisions uf this Article with respect to latent defects, gross mistakes, or l~aud.
13.1.8. Neither the foregoing nor any provision in the Conaact Documents, nor any special guarantee time limit, shall
be held to limit the Design/Builder's liability for defects, to less than the legal limit of liability in accordance with the law
of the place of building.
I3.1.9. Any supplies or equipment, or parts thereof, corrected or furnished in replacement under this Article, shall also
be subject to the terms of the warranty provisions herein to the same extent as supplies and equipment initially dehvered.
The warranty, with respect to supplies, equipment, or parts thereofi shall be equal in duration as if initially delivered and
shall nm fi'om the date of delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever
is later.
13.2 Access to [York:
The Engineer and the Engineer's representatives, other representatives of the City, testing agencies and governmental
agencies with jurisdictional interests shall have access to the Work, at any time for their observation, inspecting and
testing. Design/Builder shall provide proper and safe conditiom for such access.
13.3 Tests and lnspections:
13.3.1. The Design/Builder shall cooperate with material testing persons and firms, and for required inspections, and
compliance and approval tests for the Work performed by the Design/Builder or ins/her Subcontractor(s).
13.3.2. If Laws or Reguiations of any public body having jurisdiction require any Work (or part thereof) to specifically
be inspected, tested or approved, the Design/Builder shall assume full responsibility therefore, pay all costs in
connection therewith and furnish the Engineer the required certificates of inspection, testing or approval. The
Design/Builder shall also be responsible for and shall pay all costs in connection with any inspection or Re-testing
required in connection with the City's or the Engineer's acceptance of a Supplier of materials or equipment proposed to
be incorporated in the Work, or of materials or equipment submitted for approval prior to The Design/Builder's purchase
thereof for incorporation in the Work. The cost of all inspections, testing, re-testing end approvals in addition to the
above which are required by the Conlract Documents shall be paid by the Design/Builder (unless otherwise specified).
The City will conduct and pay for the conformance tests on materials installed in-place, and the Design/Builder shall pay
for re-testing of all failing and non-conforming materials thereafter.
13.3.3. AIl inspections, tests or approvals other than those required by Laws or Regulations of any public body having
jurisdiction shall be performed by professional firms or certified materials laboratories acceptable to the Engineer.
13.3.4. If any Work (incinding the work of others) that is to be inspected, tested or approved is covered without written
concurrence of the Engineer, it must, be uncovered for observation. Such uncovering and testing when required by the
Engineer shall be at the Design/Builder's expense.
13.3.5. Neither observations by the Engineer nor inspections, tests or approvals by others shall relieve the
Design/Builder from the Design/Builder's obligations to perform the Work in accordance with the Contract Documents.
13.4 Uncovering Work:
13.4.1. If any Work is covered contrary to the written request of the Engineer it must, if requested by the Engineer, be
uncovered for the Engineer's observation and replaced at the Design/Builder's expense.
13.4.2. If the Engineer considers it necessary or advisable that covered Work be observed by the Engineer or inspected
or tested by others, the Design/Builder, at the Engineer's request, shall uncover, expose or otherwise make available for
observation, inspection or testing as the Engineer may require, that pon/on of the Work in question, furnishing all
necessary labor, material and equipment. If it is found that such Work is Defective, the Design/Builder shall bear all
direct; indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of
satisfactory reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys and other
professionals), and the City shall be entitled to an appropriate decrease in the Contract Price.
13.5 City May Stop The I~ork:
If the Work is defective, or the Design/Builder fails to supply sufficiem skilled workers or suitable materials or
equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract
Documents, the City may order the Design/Builder to stop the Work, or any pon/on thereof, until the cause for such
order has been eliminated; however, tiffs right of the City to stop the Work shall not give rise to any duty on the part of
the City to exercise this right for the benefit of the Design/Builder or any other party.
13.6 Correction or Removal of Defective }Fork:
If required by the Engineer or the City, the Design/Builder shall promptly, as directed, either correct all Defective Work,
whether or not fabricated, installed or completed, or, if the Work has been rejected by the Engineer or the City, remove
it fi'om the site and replace it with non-defective Work. The Design/Builder shall bear all direct, indirect and
consequential costs of such correction or removal (including but not limited to fees and charges of engineers, architects,
attorneys and other professionals) made necessary thereby.
13.7 Correction Period:
If within Two Years after the date of Substantial Completion or such longer period of time as may be prescribed by Laws
or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any
specific provision of the Contract Documents, any Work is found to be Defective, the Design/Builder shall promptly
without cost to City and in accordance with City's written instructions, either correct such Defective Work, or, if it has
been rejected by City, remove it fi.om the site and replace it with non-defective Work. If the Design/Builder does not
promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or
damage, the City may have the Defective Work corrected or the rejected Work removed and replaced, and all direct,
indirect and consequential costs of such removal and replacement (including but not limited to fees and charges of
engineers, architects, attorneys and other professionals) will be paid by the Design/Builder. In special circumstances
where a particular item of equipment or portion of Work is placed in continuous service before Substantial Completion
of all the Work, the correction period for that item may start to nm fi.om an earlier date if so provided in the
Specifications or by Written Amendment. Landscaping replacement shall be warranted for two growing season.
13.8 Acceptance of Defective Work:
If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to accept it, the City
may do so. The Design/Builder shall bear all direct, indirect and consequential costs ara'ibutable to the City's evaluation
of and determination to accept such Defective Work. All accepted defective Work shall be subject to significant price
reduction acceptable to the City end the City Engineer.
13.9 City Ma)' Correct Defective Work:
If the Design/Builder fails within Ten (10) consecutive calendar days after written notice of the Engineer or the City to
proceed to correct and to correct Defective Work or to remove and replace rejected Work as required by the Engineer or
the City in accordance with paragraph 13.6, or if the Design/Builder fails to perform the Work in accordance with the
Contract Documents, or if the Design/Builder fails to comply with any other provision of the Contract Documents, the
City may, afl:er seven days' written notice to the Design/Builder, correct and remedy any such deficiency. In exercising
the rights and remedies under this paragraph the City shall proceed expeditiously to the extent necessary to complete
corrective end remedial action. The City may exclude the Design/Builder fi.om ali or part of the site, take possession of
all or part of the Work, and snspend the Design/Builder's services related thereto, take possession of the
Design/Builder's tools, appliances, construction equipment end machinery at the site and incorporate in the Work ali
materials and equipment stored at the site or for which the City has paid the Design/Builder but which are stored
elsewhere. The Design/Builder shall allow the City, the City's representatives, agents and employees such access to the
site as may be necessary to enable the City to exercise the rights and remedies under this paragraph. All direct, indirect
and consequential costs of the City in exercising such rights and remedies will be charged against the Design/Builder,
and a Change Order will be issued by the City incorporating the necessary revisions in the Contract Price. Such direct,
indirect and consequential costs will include but not be limited to fees and charges of engineers, architects, attorneys and
other professionals, all court costs and all costs of repair and replacement of work of others destroyed or damaged by
correction, removal or replacement of the Design/Builder's Defective Work. The Design/Builder shall not be allowed an
extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by the City
of the City's rights and remedies hereunder.
13.10 Unauthorized Work:
Work performed beyond the lines and grades on the Drawings or approved Design Documents, Construction Documents
or Shop Drawings end extra work done without written authorization, will be considered as unauthorized work, and the
Design/Builder will receive no compensation therefore. If required by the City, unauthorized work will be remedied,
removed, or replaced by the Design/Builder at the Design/Builder's expense.
ARTICLE 14 - PAYMENTS TO DESIGN/BUILDER AND COMPLETION
14.1 Determination of ~York Value:
The Work quantities recorded on the City of Aspen Engineering Departmem's Daily Construction Log forms shah serve
as the basis for preparation and justification of the progress payments. Payments to the Design/Builder shall be
prepared on the City of Aspen Engineering Department's Progress Pay Estimate Form on account of Uuit Price Work
based on the number of uuits actually installed complete in place and transferred from the Daily Coustmcfion Logs.
14.2 Application for Progress Payment:
14.2.1. Progress payments shall be made once each month as the Work progresses, when the Design/Builder is
performing satisfactorily under the terms of the Contract Documents. Said payments shall be based upon progress
estimates prepared by the Engineer, of the value of work performed and materials placed in accordance with the
Contract Documents and the value of materials on hand in accordance with these General Conditions. The amount of the
progress estimate to be paid to the Design/Builder shall be subject to the following:
14.2.1.1 STANDARD RETA1NMENT: The City shall make a deduction from the progress estimate in the
amount considered necessary to protect the interests of the City, pursuant to Section 24-91-I03, CRS. That amount to be
retained shall be as follows: (a) for contract price of less than $50,000 the retained amount shall be 10% o£the value of
the completed work; (b) for contract price between $50,000 to $1,000,000.00 the retained amount shall be 7% of the
value of the completed work; and, (c) for conlract price over $1,000,000.00 the retained amount shall be 5% of the value
of the completed work. No further retainment shall be withheld if the Contractor makes satisfactory progress in the
Contract Work. The amount retained shall be in effect until such time as final payment is made, with the following
exceptions:
a) When one hundred Percent (100%) of the Work has been complete, the Engineer may, at his/her discretion,
reduce the retained amount by fifty percent (50%) of the required retainage.
b) Upon one hundred percent (100%) completion and acceptance of the project, the Engineer may reduce the
retainment to fffiy percent of the required retainage. In addition to standard retainment, the City shall withhold
funds for claims against the Contractor filed by Subcontractors and Suppliers, pursuant to Section 38-26-107,
CRS.
14.2.2. NO PAYMENT. A progress payment shall not be made when the total value of the work
done since the last estimate amounts is less than $500.00.
14.2.3. LUMP SUM ITEMS. All lump sum Bid items shall be paid on a pro-rata basis determined by the percentage of
the total Work completed or if the Bid item is installed or completed One Hundred Percent (100%) in place and
accepted by the Engineer.
14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work,
the Design/Builder is respous~le for prompt payments to all Subcontractors. As a minimum, the Design/Builder is
respomible for prompt payments to all Subcontractors. As a minimum, the Design/Builder shall incorporate provisions
in all subcontracts to satisfy the following requirements:
14.2.4.1. The Design/Bdilder shall make payments to all Subcontractors at least once each month as the Work
progresses, when the Subcontractor is perfonuing satisfactorily under the terms of the Contract Documents
between the Design/Builder and Subcontractor;
I4.2.4.2. Payments to Subcontractors shall be based on ail moneys due the Subcontractor under the terms of
the conWact between the Design/Builder and Subcontractor;
The Design/Builder shall make payments to Subcontractors within 10 days of receipt of the City's payment to
the Design/Builder;
Subcontractors and lower tier SubconWactors shall make payments to their Subcontractors, according to the
requirements above and shall make payments within 10 days of receipt of payment from the next higher tier.
14.3 Design/Builder's lVarranO~ of Title:
The Design/Builder warrants and guarantees that tire to ali Work, materials and equipment covered by any progress pay
estimate approved for Payment, whether incorporated in the Project or not, will pass to the City no later than the time of
payment free and clear of all Liens.
14.4 Engineer's Review of Progress Payments.
14.4.1. The Engineer's recommendation of any payment requested in an Application for Payment will constitute a
representation by the Engineer to the City, based on the Engineer's on-site observations of the Work in progress and on
the Engineer's review of the pay estimate form and the accompanying data and schedules that the Work has progressed
to the point indicated; that to the best of the Engineer's knowledge, information and belief, the quality of the Work is in
accordance with the ConWact Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Con~:act Documents, to a final
deternfination of quantities and classifications for Unit Price Work in the Bid Proposal form, and to any other
qualifications stated in the recommendation); and that the Design/Builder is entitled to payment of the amount
recommended. However, by recommending any such payment the Engineer will not thereby be deemed to have
represented that exhaustive or continuous on-site inspections have been made to check the quality or the quantity of the
Work beyond the responsibilities specifically assigned to the Engineer in the Contract Documents or that there may not
be other matters or issues between the parties that might entitle the Design/Builder to be paid additionally by the City or
the City to withhold payment to Design/Builder.
14.4.2. The Engineer may refuse to recommend the whole or any part of any payment if, in the Engineer's opinion, it
would be incorrect to make such representations to the City. The Engineer may also refuse to recommend any such
payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nulhfy any
such payment previously recommended, to such extent as may be necessary in the Engineer's opinion to protect the City
from loss because:
14.4.2.1. The Work is Defective, or completed Work has been damaged requiring
correction or replacement;
14.4.2.2. The Contract Price has been reduced by Written Amendmem or Change Order;
14.4.2.3. The City has been required to correct Defective Work or complete Work in
accordance with paragraph 13.9.; or,
14.4.2.4. Of the Engineer's actual knoMedge of the occurrence of any of the events
enumerated in Article 15.
The City may refuse to make payment of the full amonnt recommended by the Engineer because claims have been made
against the City on account of the Design/Builder's performance or fum/shing of the Work or Liens have been fried in
connection with the Work or there are other items entitling the City to a set-off against the amount recommended, but the
City must give the Design/Builder immediate written notice (with a copy to the Engineer) stating the reasons for such
action.
..... ~ , III I III II II IIII
14.5 Substantial Completion:
14.5.1. The date accepted by the City when the constt'uction of all Work items in the project or a specified part thereof
is One hundred percent (100%) completed, in accordance with the Contract Documents, so that the project or specified
part can be utilized for the purpose for which it is intended shall establish substantial completion for the project or for a
specified part.
14.5.2. When the Design/Builder considers the entire Work ready for its intended use, the DesigxffBullder shall
coordinate with the City an inspection of the Work and conduct such tests as required to ensure the Work meets or
exceeds all Performance Standards to help determine the status of completion. If the City does not consider the .Work
satisfactorily complete, the Engineer shall notify the Design/Builder in writing giving the reasons therefore. There shall
be a Punch List of the items to be completed before final inspection and final payment At the time of deliver3' of the
completed punch list items, the City must conduct a final inspection and upon acceptance by the City, the
Design/Builder shall deliver a fully executed Claim Release form to facilitate the project closure.
14.6 Partial Utilization:
Use by the City of any finished part of the Work, which has specifically been identified in the Contract Documents, or
which the City, the Engineer and the Design/Builder agree constitutes a separately functiomg and useable part of the
Work that can be used by the City without significant interference with the Design/Builder's performance of the
remainder of the Work, may be accomplished prior to Final Completion of all the Work subject to the following:
14.6.1. The City at any time may request the Design/Builder in writing to permit the City to use any such part of the
Work which the City believes to be ready for its intended use and substantially complete. If the Design/Builder agrees,
the Design/Builder will certify to the City and the City Engineer that said part of the Work is substantially complete.
14. 7 Final Inspections:
Upon written notice fxom the Design/Builder that the entire Work or an agreed pordon thereof is complete, the City will
make a final inspection with the Engineer and the Design/Builder and will notify the Design/Builder in writing of all
particulars in which this inspection reveals that the Work is incomplete or Defective. The Design/Builder shall
mediately take such measures as are necessary to remove and eliminate all such deficiencies. All deficiencies or
incomplete Work items shall be recorded by the City Project Inspector on a Punch List Sheet(s) and distributed to the
Design/Builder and the Engineer immediately.
14.8 Final Progress Payment:
14.8.1. Alter the Design/Builder has completed all such corrections to the satisfaction of the City and delivered all
maintenance and operating instructions, schedules, guarantees, as-built documentation (as provided in paragraph 6.12)
and other documents - all as required by the Contract Documents, and after the City has indicated that the Work is
acceptable, the Design/Builder shall deliver to the Engineer a fully executed and notarized Claim Release Form and the
City Engineering Department will advertise for project closure and release of the final retainment. The final pay
estimate will consist of retainment amount only. Final payment will be released following a thirty (30) day waiting
period fi.om the date of the second publication of the advertisement for final settlement and closure if no verified claim
has been filed with the City.
14.9 Settlement l~ate, Notice to Subcontractors, Acceptance and Final Payment:
If, on the basis of the Engineer's observation of the Work during constmctiun and final inspection, and the Engineer's
review of the final progress Payment and accompanying documentation - all as required by the Contract Documents, the
Engineer represents to the City that the Work has been completed and the City is satisfied that the Work has been
completed and the Design/Builder's other obligations under the Contract Documents have been fi~lfilled, the City shall
cause to be published on two (2) consecutive weeks in the weekly editions of the Aspen Times, a public notice setting a
final settlement date; which said settlement date shall be at least ten (10) days after the second publication. Said notice
shall advise all persons, co-parmerships, associations of persons, companies, or corporations that have furnished labor,
provisions, materials, team h/re, sustenance, or other supplies used or consumed by Design/Builder or his
Subcontractor(s), that they may file a claim with the City, at any time up to and including the time of final settlement.
Upon filing of any such claim, the City shall withhold from retainment withheld in accordance with the Contract
Documents, to insure the payment of said claims until the same have been paid or such claims as filed have been
withdrawn, such payment or withdrawal to be evidenced by filing with City a receipt in fifll or an order for withdrawal in
writing and signed by the person filing such claim or his duly authorized agents or assigns. Such fimds shall not be
withheld longer than Ninety Days following the date fixed for final settlement as published unless an action is
commenced within that time to enforce such unpaid claim and a notice of LIS Pendens is filed with the City. At the
expiration of such ninety day period, the City shall pay to Design/Builder such moneys and funds as are not subject of
suit and Lis Pendens notices and shall retain thereaRer, subject to the final outcome thereof, only such balance of funds
to insure the payment of judgments which may result fi'om such suit.
14.8.2. If, the remaining balance to be held by the City for Work not fully completed or corrected is less than the
retainage set forth at paragraph 14.2, and if Bonds have been furnished as required in Article 5, the written consent of
the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be
submitted by the Design/Builder to the Engineer. Such payment shall be made under the terms and conditions governing
final payment, except that it shall not constitute a waiver of claims.
14.10 Degign/Builder's Continuing Obligation:
The Design/Builder's obligation to perform and complete the Work in accordance with the Con~'act Documents shall be
absolute. Neither recommendation of any progress or final payment by the Engineer, nor the issuance of a certificate of
Substantial Completion, nor any payment by the City to the Design/Builder under the Contract Documents, nor any act
of acceptance by the City nor any failure to do so, nor any review and approval of a Shop Drawing or sample
submission, nor the issuance of a notice of acceptability by the Engineer pursuant to paragraph 14.9, nor any correction
of Defective Work by the City will constitute an acceptance of Work not in accordance with the ConUact Docments or
a release of the Design/Builder's obligation to perform the Work in accordance with the Contract Documents.
14.11 LiquidatedDamages:
14.11.1. TIME FOR COMPLETION: It is hereby understood and mutually agreed, by and between the Design/Builder
and the City, that the date of beginuing Work and the time of completion as specified herein are essential conditions of
the Agreemem. The Design/Builder agrees that said Work shall be prosecuted regularly, diligently, and at such rote of
progress as will ensure completion within the rime(s) specified. It is expressly understood and agreed, by and between
the Design/Builder and the City, that the t/me(s) for completion nfthe Work described herein are reasonable time(s) for
the completion of the Work, taldng into considemtiun the average climatic conditions prevailing in the locality of the
Work.
14.11.2. TIME IS OF THE ESSENCE TO THE AGREEMENT: It is further agreed that time is of the essence in
completing the Work, and that the Project Work Schedule referenced at paragraph 6.9. and the Submittal Schedule
referenced at paragraph 6.3. and all dates set forth therein and where in the Con~tct Documents, an additional time is
allowed for the completion of the Work, the new time limit fixed by such extension shall be of the essence of the
Contract.
14.11.3. LIQUIDATED DAMAGES: Substantial Completion of the Construction Phase are of paramount importance
to the City. If any portion of the Work is not completed in accordance with any time extensions granted by the City, the
City will suffer damage, the extent of which will be impractical and extremely difficult to estimate accurately. Therefore,
as part of the consideration for executing the Contract, it is hereby agreed that the Design/Builder shall pay to the City
the amounts specified in the Liquidated Damages Form included in the Contract Documents. This particular provision
shall not be consU'ued as a penalty upon said Design/Builder for fa/ling fully to complete said Work as agreed in the
Proposal and Contract Documents nor is it intended, but as Liquidated Damages to compensate the City for all costs
incurred as a result of such breach of Contract.
I4.11.4. DELAYS IN WORK COMPLETION OF CONSTRUCTION PHASE: Subject to the terms of "Excusable
Delays", as contained in Section 14.11.6. of the GenemI Conditions, the Design/Builder expressly agrees to pay the City
as a reasonable estimate of just compensation for damages contemplated with the clause, the mount set forth in the
Liquidated Damages Form for each consecutive calendar day that Substantial Completion is delayed in the Construction
of the project. In no event shall the total mount of liquidated damages exceed Twent~ Percent (20%) of the total
Contract Price for the Construction.
14.11.5. DELAYS 1N SUBMITTAL OF AS-BUILT DOCUMENTATION: Should the Design/Builder fail to make
delivery of the as-built documentation covered in the Contract Documents prior to release of the final payment, it shall
pay liquidated damages to the City the amounts equal to preparation cost of the As-Built drawings by the City and its
Engineers and Surveyors.
14.11.6. EXCUSABLE DELAYS - FORCE MAJEURE: If, by reason of Force Majeure, any party hereto shall be
rendered unable wholly or in part to carry out its obligations under this Agreement then such party shall give notice and
full particulars of such Force Majeure in writing to the other party within a reasonable time atter occurrence of the event
or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure,
shall be suspended during the continuance of the liability then claimed, but for no longer period, and any such party shall
remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall mean
acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the
Government of the Uuited States or the State of Colorado or any political subdivision, except the City, or any civil or
military authority, insurrection, riots, epidemics, landslides, lighming, earthquakes, fires, hurricanes, storms, floods,
washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to
machinery, pipelines, or canals, or other causes not reasonably within the control of the pat~y claiming such inability. It
is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party
having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable
dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or
parties when such settlement is unfavorable to it in the judgrnent of the party having the difficulty.
14.11.7. CUMULATIVE REMEDY: The liquidated damages referred to herein are intended to be and are cumulative
and shall be in addition to every other remedy now or hereafter enforceable at law, in equity, by statute, or under
contract.
ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION
15.1 City May Suspend ~Vork:
The City may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than
ninety days by notice in writing to the Design/Builder and will fix the date on which work will be resumed. The
Design/Builder shall resume the Work on the date so fixed. The Design/Builder shall be allowed an increase in the
Contract Price or an extension of the Contract Time, or both if the Consecutive Calendar Days are used to complete the
Work, directly attributable to any suspension if the Design/Builder makes an approved claim therefor as provided in
Article 11. Other Work suspensions such as delayed start or phased construction shall not entire the Design/Builder to
any compensation of payment or time.
15.2 City May Terminate:
Upon the occurrence of any one or more of the following events:
15.2.1. If the Design/Builder commences a voluntary case under any chapter of the Bankruptcy Code (Title
II, United States Code), as now or hereafier in effect, or if Design/Builder takes any equivalent or similar action
by filing a petition or otherwise under any other federal or state law in effect at such time relating to the
bankmptcy or insolvency;
15.2.2. If a petition is filed against Design/Builder under any chapter of the Banla'uptcy Code as now or
hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief
against Design/Builder under any other federal or state law in effect at the time relating to bankruptcy or
insolvency;
15.2.3. If the Design/Builder makes a general assignment for the benefit of creditors;
15.2.4. If a trustee, receiver, custodian or agent of Design/Builder is appointed under applicable law or under
contract, whose appointment or authority to take charge of property of Design/Builder is for the purpose of
enforcing a Lien against such property or for the purpose of general administration of such property for the
benefit of Design/Builder's creditors;
15.2.5. If the Design/Builder admits in writing an inability to pay its debts generally as they become due;
15.2.6. If the Design/Builder persistently fails to perform the Work in accordance with the Contract
Documents (including but not limited to, failure to supply sufficient skilled workers or suitable materials or
equipment or failure to adhere to the progress schedule established under paragraph 2.9 as revised fi.om time to
time);
15.2.7. If the Design/Builder disregards Laws or Regulations of any public body having jurisdiction;
15.2.8. If the Design/Builder disregards the authority of Architect; or,
15.2.9. If the Design/Builder otherwise violates in any substantial way any provisions of the Contract
Documents:
The City may, after giving the Design/Builder (and the surety, if there be one) seven days written notice and to the extent
permitted by Laws and Regulations, terminate the services of Design/Builder, exclude the Design/Builder from the site
and take possession of the Work and of all the Design/Builder's tools, appliances, construction equipment and machinery
at the site and use the same to the full extent they could be used by the Design/Ballder (without Iiability to the
Design/Builder for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for
which the City has paid the Design/Builder but which are stored elsewhere, and finish the Work as the City may deem
expedient. In such case the Design/Builder shall not be entitled to receive any further payment until the Work is
finished. If the unpaid balance of the Contract Price exceeds the direct, indirect and consequential costs of completing
the Work (including but not limited to fees and charges of engineers, architects, attorneys and other professionals and
court and arbitration costs) such excess will be paid to the Design/Builder. If such costs exceed such unpaid balance, the
Design/Builder shall pay the difference to the City. Such costs incurred by the City will be approved as to
reasonableness by the Eng/neer and incorporated in a Change Order, but when exercising any fights or remedies under
this paragraph the City shall not be required to obtain the lowest price for the Work performed.
15.2.10. Where the Design/Builder's services have been so terminated by the City, the termination will not affect any
rights or remedies of the City against the Design/Builder then existing or which may thereal%r acme. Any retention or
payment of moneys due the Design/Builder by the City will not release the Design/Builder fi.om liability.
15.2.11. Upon seven days' written notice to the Design/Builder, the City may, without cause and without prejudice to
any other right or remedy, elect to abandon the Work and terminate the Contract. In such case, the Design/Builder shall
be paid for all Work executed and any expense sustained plus reasonable termination expenses.
15.3 Design/Builder May Stop IVorl{ or Terminate:
If, through no act or fault of the Design/Builder, the Work is suspended for a period of more than ulnety days by the City
or under an order of court or other public authority, then the Design/Builder may, upon seven days written notice to the
City and the Engineer, terminate the Contract and recover from the City payment for all Work executed and installed in
place and any expense sustained plus reasonable termination expenses. The provisions of this paragraph shall not
relieve the Design/Builder of the obligations under Article 6 to carry on the Work in accordance with the progress
schedule and without delay during disputes and disagreements with the City.
15.4. Termination of Professional Design Service&
Prior to termination of the services of the Architect or any other design professional designated in the Part 2
Agreement, the Design/Builder shall identify to the City in writing another arch/tect or other design professional with
respect to whom the City has no reasonable objection, who will provide the services originally to have been provided by
the Arckitect or other design professional whose services are being terminated.
ARTICLE 16 - MISCELLANEOUS
16.1 Nondiscrimination
During the performance of this Contract, the Design/Builder agrees as follows:
16.1.1. 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 affirmative action to insure that applicants
are employed, and that employees are treated during employment without regard to their race, color, religion, sex,
national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era
veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment adve~fdsing; layoff or termination; rates of pay or other forms of compensation; and selection
for txahning, 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 provisions of this nondiscrimination clause.
16.1.2. 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 origin, sexual orientation, age, marital status, being
handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran in the selection and retention of
Subcontractors, including procurements of materials and leases of equipment.
16.1.3. The 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.
16.1.4. In all solicitatious 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
Subconlxactor 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, relig/on, sex, national origin, sexual
orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran.
16.1.5. The 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 union
or workers' representatives of the DesigrdBuilder's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
16.2 Giving Notice:
Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been
validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for
whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address
known to the giver of the notice.
16.3 ComputationofTime:
16.3.1. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the
fa'st and include the last day of such period. If the last day of any such period fails 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 fi.om the computation.
16.3.2. A consecutive calendar day of twenty-fottr hours measured from midnight to the next midnight shall comtitute
a day. A working day is any day; Monday through Friday of each week, also called business day.
16.4 General:
Should the City or the 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 first observance of such injury or
damage. The provisions of this paragraph shall not be consh'ued as a substitute for or a waiver of the provisions of any
applicable statute of limitatious or repose.
16.4.1. The duties and obligations imposed by these General Conditions and the rights and remedies available
hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations
imposed upon the Design/Builder by the General Conditiom, and all of the rights and remedies available to the City
thereunder, are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available
to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee
or by other provisions of the Contract Documents, and the provisions of tins paragraph will be as effective as if repeated
specifically in the Conlract Documents in connection with each particular duty, obligation, right and remedy to winch
they apply. All representatiom, warranties and guarantees made in the Con~cact Docments will survive fmaI payment
and termination or completion of the Agreement.
16.5 Independent Contractor Status:
It is expressly acknowledged and understood by the parties that nothing in this agreement shall result in, or be construed
as establishing an employment relationship. The DesigrffBuilder shall be, and shall perform as, an independent the
Design/Builder who agrees to use his 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 ouly 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 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 Design/Builder. 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 ENDEPENDENT DESIGN/BUILDER, SHALL NOT BE ENTITLED TO
WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND
STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE AGREEMENT.
16.6 Prohibited lnterest:
No member, officer, or employee of the City of Aspen, Pitk/n County or the Town of Snowmass Village shall have any
interest, direct or indirect, in this Agreement or the proceeds thereof.
16. 7 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of lnterest:
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 selling agencies maintained by the Design/Builder for the
purpose of securing business.
16.7.1. 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, recorranendation, preparation of any part of a
program requkement 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 uny
solicitation or proposal therefor.
16.7.2. it shall be a material breach of the Agreernent for any payment, gratuity, or offer of employment to be made bY
or on behalf of a Subcontractor under a contract to the prime Design/Builder or higher tier Subcontractor or uny person
associated therewith, as an inducement for the award of a Subcontract or order. The Design/Builder is prohibited from
inducing, by uny 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 all applicable local, state und federal "unti-kickhack"
statutes or regulations.
16.8 Payments Subject to Annual Appropriations:
If the Agreement awarded extends beyond the calendar year, nothing herein shall be construed as un obligation by the
City beyond any amounts that may be, from time to time, appropriated by the City on un annual basis. It is understood
that payment under uny Agreement is conditional upon annual appropriation of fimds by said governing body und 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 und shall not be obligated to provide services or materials for wh/ch funds have not been
appropriated.
16.9 Design/Builder Acceptance:
16.9.1. The acceptance by the Design/Builder of uny payment made on the final completion of Work under these
General Conditions, or of any final payment due on termination, shah constitute a full und complete release of the City
from 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.
16.9.2. No action shall be maintained by Design/Builder, its successors or assigns, against the City or the Engineer on
uny claims based upon or arising out of this Agreement or out of unything 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 termmation of this Agreement.
16.10 Successors andAssigns
This Agreemem 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 und 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 paily.
16.11 ThirdParties
This Agreement does not und shall not be deemed or consl~ued to confer upon or grant to any third party or parties,
except to parties to whom the Design/Builder of the City may assign this Agreement in accordance with the specific
written consent, uny rights to claim damages or to bring suit, action or other proceeding against either the City or the
Design/Builder because of uny breach hereof or because of uny of the terms, covenants, agreements or conditions herein
contained.
l~12Waker
No waiver of default by either party of uny 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 uny of the terms, covenants or
conditions herein contained, to be performed, kept und observed by the other party,
16.13 Contract Made in Colorado
The Parties agree that tttis Agreement was made in accordance with the laws of the State of Colomdo and shall be so
construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
16.14 Attorney's Fees
In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be
entitled to its costs and reasonable attorney's fees.
16.15 Waiver of Presumption
This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that
no construction shall be made or prestar~tion shall arise for or against either patty based on any alleged unequal status
of the parties in the negotiation, review or drafting of this Agreement.
16.16 Severabilio~ Clause:
If any provision of the Agreement is subsequently declared by legislative or judicial authority to be unlawful,
unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America or the
State of Colorado, all other provisions of the Agreement shall remain in full force and effect.
16.17 Audit and Records
The Design/Bnilder shall maintain all data and records pertinent to the Work performed under this Agreement, in
accordance with generally accepted accounting principles, and shall preserve and make available all data and records
until the expiration of three (3) years fi.om the date of final payment under this Agreement, or for such longer period, if
any, as is required by applicable statute or by other articles of the Contract Documents. The authorized representatives
of the U.S. Department of Transportation, Comptroller General of the United States, the State of Colorado and the City
shall have access to all such data and records for such time period to inspect, audit and make copies thereof during
normaI business hours. The Design/Bnilder covenants and agrees that it shall require that uny Subcontractor utilized in
the performance of this Agreement shall permit the authorized representatives of the United States Department of
Transportation, the State of Colorado, and the City, to similarly inspect and audit all data and records of said
Subcon~actors relating to the performance of said Subcontractors under this Agreement for the same lime period.
16.18 Audit
16.18.1. COST OR PRICING DATA: If the Design/Builder has submitted cost or pricing data in connection with the
pricing of any modification to the Agreement, unless the pricing was based on adequate price competition, established
catalog or market prices of commerciaI items sold in substantial quuntities to the general public, or prices set by law or
regulation, the Engineer or a representative of the City shall have the right to examine and audit all books, records,
documents, und other data of the Design/Builder (including computations and projections) related to negotiating, pricing
or performing the modification, in order to evaluate the accuracy, completeness, and currency of the cost and pricing
data. In the case of pricing any modification, the authorized representatives of the U.S. Depaxnment of Transportation,
and the State of Colorado shall have the same rights.
16.18.2. AVAILABILITY: The Design/Builder shall make available at its offices at all reasonable times the materials
described in the Cuntmct Documents, for examination, audit, or reproduction, until three (3) years after final payment
under the Agreement, or for any period, if uny, as is required by applicable statute or by other articles of this Agreement.
16.18.3. If this Agreement is completely or partially terminated, the records relating to the Work
terminated shall be made available for three years afl.er any resulting final termination payment.
16.18.4. Records pertaining to appeals under the disputes clause or to litigation or the settlement
of claims arising under or relating to the performance of this Agreement shall be made available
until disposition of such appeals, litigation, or claims.
Rev. 1/18/01 -Secs. 14.2.1.1 & 13.1.1
jpw-lO/26/2005-M:~clty~cityatty~contract\construc\db2-101.doc
Scope of YVork
Mo Grande Parking Garage East (Main) Stairs Replacement
The selected Contractor's work shall include, but is not limited to the following:
Contractor shall comply with the 2003 International Building Code (I.B.C.) as
interpreted by the City of Aspen Building Department, yet allowing for canine / dog
friendly passage as well.
2. This is a desi_~n build project for the East (Main) stairs between the Rio Grande
Paring Garage and 455 Rio Grande Place and shall include, but is not limited to:
a. demolition of existing stairs;
b. transportation of material removed during demolition;
c. desig-n and construction of new stairs per _00s I.B.C.;
e. on-site supervision of staff;
f. regular communication with assigned City staff;
g. continuous maintenance of a clean and safe construction site;
h. development of and work within stipulated budget;
i. work within timeframe for completion of Project; and
j. work to limit or minimize the number of change orders.
The Contractor shall retain an en~neer to design and stamp the project with all
aspects of the stair replacement meeting 2003 International Building Code. The City
shall have an opportunity to approve or reject the plans the contractor submits.
4. The Contractor will apply for and manage all necessary or required permits through
the City of Aspen Engineering Office and City of Aspen Building Department.
5. The Contractor shall complete ail phases of the Project by June 1, 2006 2005.
The Contractor shall be allowed to use three to five parking spaces in the adjacent
parking lot for Construction staging and parking at no cost. The Contractor and his
employees may use the restroom in the Rio Grande Parking Garage facility or the
adjacent City office building during construction In lieu of a portable toilet on site.
P.O. Box 1944 · Gienwood Spt rigs, CO 81602 · 970-945-2431 · Colorado Wats 1-800-332-4920 · Fax 970-945-8245
September 26, 2005
City of Aspen - Purchasing
130 South Galena Street
Aspen, Colorado 81611
Atto:
Regarding:
Rebecca Hodgson
DesigT~/Build Rio Grande Parking Garage East Stair Replacement
In accordance with your Invitation to Bid and several rounds of negotiations, please
accept t/tis document as our offer and proposal to complete the work described in the'
Invitation to Bid. Our offer anticipates our conformance to the terms of the General
Conditions and Invitation to Bid, except as noted below:
Contract Assumptions:
We assume ifa contract is awarded, it is awarded in two parts; Part 1 is for design only
and Part 2 is for construction only. Part 1 could be awarded without Part 2, but Part 2
could not be awarded without Part 1. If the City requested sigrfificant changes to BTE's
desig~ during their review process, BTE could elect to not execute Part 2 at the price
stipulated below, but BTE would be obligated to make reasonable City request changes to
the design under the Part I contract. The intent is that the City would end up with a set of
plans and specifications that could be put out to public b. id. If no significant changes are
requested by the City during their review process, BTE would be obligated to execute the
Part 2 contract at the price stipulated below.
Design Assumptions:
BTE proposes to replace four flights of concrete stairs, three concrete landings and one
brick pavers landing comprising approximately 47 treads at 12" x 8' each and 507 SF of
landings,
The proposed design will include concrete stairs under a painted structural steel roof
frame and standing seam metal roof'mg. All exposed concrete will be integrally colored,
Davis - San Diego Buff. We will endeavor to match the adjacent roof type and color, but
this may mot be feasible. We include seven light fixtures. We have attached a plan
showing our intent.
Based on our understanding that the e,'dsting stairs have settled, we anticipate that a deep
foundation Mil be required. We intend to utilLze the existing helical piers where possible
and instal/new piers as needed.
We have an allowance of $2,000.00 in our proposal to repair brick. We anticipate that
some brick which will be exposed in the new design may need repair, or new brick may
need to be added. The City may choose to spend more than $2,000.00 by change order or
they could take a credk, depending on how much masonry work they direct.
Schedule:
BTE can not complete the work in nine weeks. After the execution of the Part 1 contract
we will require four weeks for design, two weeks for the City to approve the design, six
weeks for steel delivery, two weeks for steel fabrication, one week to install the roof
structure and one week to install the metal roofing. We would propose to begin work on
the site two weeks before expected steel delivery such that the existing stairs wilFonly be
out of service for six weeks.
Fee:
BTE proposes to perform the Part 1 portion of the contract for a lump sum of $16,000.00.
BTE proposes to perform the Part 2 portion of the contract for a lump sum of
$226,000.00.
Please do call w/th questions or comments.
R~ectfully, _ '
· Terry Ostrom
Member
Attachment
MEMORANDUM
TO:
FROM:
RE:
DATE:
Mayor Klanderud and Aspen CiV Council
Ckris Bendon, Community Development Director
Parking Garage Stairs - BTE Contract
October 24, 2005
The proposed stair project includes a roof structure to protect the stairs from the elements.
Development of tths roof structure requires an amendment to the Specially Plarmed Area
approvals for the garage. The Planning Director is enabled to approve th/s level of SPA
amendment if, among other objective criteria, it is considered consistent with *or an
improvement to the ori~nal approvals. This broad criterion gives the Director the ability to
consider subjective issues such as aesthetics.
The Civic Master Plan Advisory Committee has discussed the opportunity to connect the
downtown and the park in a more elegant way through this pedestrian corridor. The
prevailing idea is to redevelop the stairs so that they are wider and with a longer rake. Th/s
concept would highlight the corridor as a pedestrian entrance to the park - sort of a "Spanish
Steps" concept. The CMP is not complete and this idea has not been endorsed by City
Council. The concept itself could take many years to implement and there are certain
immediate operational needs that the Asset Department is trying to rectify.
This is the type of approval that, although authorized, I would not approve administratively -
the balance between aesthetics and operation deserves some level of discussion.
Unfortunately, ~vith SPA Amendments, a full P&Z and Council review is required if not
approved administratively. This could represent 6 months of process. I don't believe this
type of change represents the need for 6 months of review.
Council should consider the physical plan at the same time as the contract.. If City Council is
satisfied with the physical plan, then I can make a positive finding on this subjective criterion
and approve the project administratively.