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HomeMy WebLinkAboutagenda.council.regular.20090928CITY COUNCIL AGENDA September 28, 2009 5:00 P.M. Meeting continued to Sept. 29, 2009 4:00 p.m. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #72, 2009 — Supporting Ballot Question Local Energy Finance District b) Resolution #73, 2009 — Contract Program Manager Wheeler Opera House c) Resolution #74, 2009 — Contract Electric Feeder Construction d) Resolution #75, 2009 — Contract Electric Feeder Materials e) Resolution #76, 2009 — Contract Power Plant Road Guardrail 0 Resolution #77,2009 - Contract AABC City Affordable Housing Part 2 g) HPC Appointments h) Minutes — September 14, 2009 VII. First Reading of Ordinances Vill. Public Hearings a) Resolution #78, 2009 — 320 E. Hyman - Wheeler Opera House Conceptual PUD b) Resolution #52, 2009 - Lift One Lodge Conceptual PUD IX. Action Items X. Adjournment Next Regular Meeting_ October 13, 2009 COUNCIL'S ADOPTED GUlnl=l INKS ✓ Stick to top priorities ✓ Foster a safe, supportive, innovative work environment that encourages creativity and acceptable risk -taking ✓ Create structure and allow adequate time & resources for citizen processes crYMITTT FC A 14 X4 Nf7rV TITATATVD DnV 1 u pletts_star@yahoo.co.uk Sarah Pletts Dance Theatre ' " Post Office Box 1838 Living Arts Foundation 410 North Mill Street A Non -Profit Global Organisation Aspen, Colorado 81612 U.S.A. / 970-925-7018 September 29, 2009 Dear Council Members: We,ask you to please help us save the 35 acres of wilderness stewarded by the Living Arts Foundation for the past 12 years. We face a court -ordered sale next Tues. Oct. 6 if we do not pay the $32,227.43 due (please see attached.) Many have responded with letters and donations to help — over $200,000. has been raised in the last 12 years. We still need $27,032.43. by Oct. 6, Please remember this is in addition to the funds we must raise to keep our programs operating. These 35 acres of wilderness have become lusher, with more wildlife siting and many more bedding sites on the mountain. This land holds all our equity gathered over the past 24 years in the Roaring Fork Valley. Please help stabilize this non-profit and get us back to our environmental education work as soon as possible. We've been doing this since our 1988 holiday play about pollution (at the Community School.) We also took part in creating the Recycling Center and the Art Park — where the theatre tent is (it used to be the automobile impound lot.) In 1997 we purchased this land to protect the wildlife and to take small retreat groups to be in stillness with nature. Retreats influenced many community members as well as cleaning up in NYC after Sept. 11 2001 and the 2002 Utah Olympics. Thanks again for your most sincere consideration - for these weeks have been more nerve wracking than the past 20 years. With gratitude, Janet Garwood / Board of Directors Sarah Pletts / Artistic Director Living Arts Foundation �Mr •1'7 I � `' Swab Plans Dance Theatre, l.td. PO Box 1839 Aspen C0 81612-1838 E-mail to: t6utat ®bakombgrew.cam FAX to: (970) 945-8902 Re: Sale No.09-113 We lave received figures tram the attorneys office stipulating the amount new.ary, to care the default on the above referenced ab as shown below. LENDER Uosid laweetto Clue Doe fete Chrges ATTORNEY Fffi & COSTS Anomey Fees & Cab-&roueb 8126109 Escrow Agent Fees PUBUC TRUSTEE FEES & COSTS Public Tr u ec Fee Record Election and Demand PabWg Fhooe, Copies, Fax Withdrawal Fee RecordWolmirvrd Wkhdmwal Fm Pabliatian Cab As Invoiced by Publisher 26,189.95 1,644.80 3,21170 370.00 150.00 11.00 35.00 35.00 6.00 35.00 537.98 27MC75 Told Due Leader 3,gM70 Total Dec Attorney WAS Told Doe PubBe Trustee S 32,227A3 TOTAL AMOUNT TO CURE C to eve the dehdt mbat be Ilia CWUMd CYNIC a WWe censer. emost be received tot &a Pttdtlk lWas xaa offia me later there 12:00 noon Tuesday. October 06.2009 Hfiords an not received by that fiM Your property may be ioeitded in the ode so be bell at If you have my questions, please centers our office at94543M or via o-mall >r,Al.e AFIF Bank Alpha Oast-28000taM Aw-G mrwd SOrbge, CO Robert A. Slade AM tOP1tt w Chief Deputy Public Trustee Aedi 7016"MI 1098tMSbeK Sidw204 Glm mod5p hW OO8160/ Rai 61m111 PT§Mf 00.1W an ea�raso rAmwood4V*Wc C08/603 Phcw (970) 94563N FAX&70) 3804010 51:0L) MEMORANDUM TO: Mayor and City Council FROM: Kim Peterson, Global Warming Project Manager THRU: Phil Overeynder, Director of Public Works DATE OF MEMO: September 18, 2009 MEETING DATE: September 28, 2009 RE: Resolution in support of Referendum IA — Energy Smart Loan Program REQUEST OF COUNCIL: City Council is asked to approve the attached resolution in support of Referendum IA. Referendum IA will appear on the Pitkin County ballot on November 3, 2009. If passed, the measure will allow Pitkin County to issue bonds and create the Energy Smart Loan Program. BACKGROUND: The Energy Smart Loan Program will be a voluntary low -interest loan available to property owners in a local improvement district. The City of Aspen will be asked to opt into to local improvement district by a separate resolution to be considered at the October 13, 2009 City Council meeting. The premise of the Energy Smart Loan Program is that property owners (residential and commercial) will have access to loans for energy efficiency and renewable energy upgrades. Repayment of the loans will occur via a special assessment placed on the owners' property tax. The loan remains with the property. It is important to note that this is not a tax and that only property owners that participate in the program will have obligation of repayment. For more information on the ballot initiative, see: http://www.voteyesla.org/voteyesla.orv,/Home.htmi. DISCUSSION: The Energy Smart Loan Program will remove one of the major hurdles to property owners making their buildings more energy efficient — the need for upfront capital. This program will allow these improvements to be made with virtually no upfront cost (although there will likely be a small loan application fee to cover administrative costs). The Energy Smart Loan Program will largely be modeled on a similar successful program in Boulder County (called Climate Smart Loan Program). That program resulted in millions of dollars worth of energy improvements in the first round. Boulder County is now implementing its second round of funding amounting to $19 million. Page I of 2 The Energy Smart Loan Program can also put the building trades — carpentry, plumbing, electrical and renewable energy installers — back to work by stimulating demand for home improvement services. The Energy Smart Loan Program is the kind of transformative financing tool that can help advance the Canary Action Plan. If Referendum IA passes, it will supplement existing efforts under the City's "It Starts at Home Campaign" and will create market demand for energy audits. The City of Aspen Utilities department is currently supporting training efforts for building performance analysts, whose services will be critical to implementing measures funded by the Energy Smart Loan Program. FINANCIALBUDGET IMPACTS: There will be no financial or budget impacts to the city as a direct result of this program. Indirect benefits could be increased sales/ use tax as a result of more contractors performing energy efficiency and renewable energy work on properties... ENVIRONMENTAL IMPACTS: The Energy Smart Loan Program will reduce greenhouse gas emissions from residential and commercial buildings as a result of improved energy efficiency and the addition of renewable energy systems. Staff will work with program administrators to track greenhouse gas savings resulting from this program. RECOMMENDED ACTION: Staff recommends that Council approve the resolution in support of Referendum 1 A creating an Energy Smart Loan Program for Pitkin County. ALTERNATIVES: Council can remain silent on this issue. The Aspen Skiing Company is spearheading a local campaign in support of Referendum IA. PROPOSED MOTION: "I move to approve a Resolution XRX, in support of Referendum I creating an Energy Smart Loan Program in Pitkin County". CITY MANAGER COMMENTS: Page 2 of 2 RESOLUTION #7a (Series of 2009) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, IN SUPPORT OF THE 2009 PITKIN COUNTY BALLOT ISSUE KNOWN AS "REFERENDUM 1A", WHICH WILL CREATE THE ENERGY SMART LOAN PROGRAM. WHEREAS, the Pitkin Board of County Commissioners passed a resolution submitting to the Electorate at the Election to be held on November 3, 2009, a financial question for Pitkin County Clean Energy Local Improvement District arising under Section 20 of Article X of the State Constitution, known locally as Referendum 1A; and WHEREAS, Referendum 1A will create the Energy Smart Loan Program which will offer low interest loans to families and businesses for energy efficiency and renewable energy upgrades; and WHEREAS, the Energy Smart Loan Program is not a tax and only property owners who participate will bear loan principal and interest repayments through a special assessment on their property taxes; and WHEREAS, the loans remain with the property not the owner; and WHEREAS, the Energy Smart Loan Program can stimulate the local economy by putting people back to work including the construction, plumbing, carpentry and renewable energy trades; and WHEREAS, the Energy Smart Loan Program supports the Canary Action Plan; NOW, THEREFORE, BE IT RESOLVED THAT THE ASPEN CITY COUNCIL supports the ballot question known as "Pitkin County Referendum 1A" that creates the Energy Smart Loan Program. The Aspen City Council urges the electors of the City of Aspen to support said proposed referendum and to vote "Yes" on its passage. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 28, 2009. Kathryn S. Koch, City Clerk TO: Mayor and Council FROM: Steve Bossart, THRU: Scott Miller DATE: September 9, 2009 MEMORANDUM Capital Asset Project Manager Capital Asset Director -� RE: Wheeler 21st Century Master Plan — Program Manager Contract — Pfocus LLC SUMMARY: The Wheeler 21st Century Master Plan includes expanding theater, lobby, and administrative areas onto the adjacent site purchased for this purpose in 1982. City Staff has been working to implement the various recommendations of the 2008 Citizen Budget Task Forces, 2008 Alverez and Marsall Operational Audit, the 2008 McMahon & Associates Financial Review and recommendations, and the Construction Experts Group suggestions. Based on those recommendations and Council Resolution 69-2008, the City's new project delivery program requires the early addition of a third party Program Manager to the team. PREVIOUS COUNCIL ACTION: Council authorized preliminary design and planning work towards obtaining project approvals. BACKGROUND: The Wheeler interviewed and selected a schematic design team to develop and test initial program solutions. In 2008 a Citizens Budget Task Force and a Construction Experts Group were appointed to review the City's approach on major capital projects. Alvarez and Marsal, a process consulting firm, was engaged to provide analysis and recommendations. The summary recommendations, approved by Council, were to develop a City managed Integrated Project Delivery (IPD) methodology, and on larger projects, engage an outside "development" or "program" manager. Staff worked with outside counsel on the delivery model and the associated contract suite. Counsel recommended using the AIA (American Institute of Architects) IPD (Integrated Project Delivery) contracts; a separate AIA contract was added to address the "Program Manager'. Other team members include the owner, the architect, and the builder ("Constructor at Risk"). Key to the success of this approach is the early professional input of all team members with respect to their skills and disciplines. Projects delivered in this manner typically produce higher quality results, within identified budgets, and without surprises. (LEED seeking building projects must utilize this or similar methods.) The City Attorney's office has approved the new capital project contract suite. DISCUSSION: The Program Manager (PM) role at the Wheeler will be focused on assisting Staff with recruiting appropriate contractors and consultants to complete the team, and working with the team to assure budget and schedule compliance. Wheeler management, the City Manager's office, and Capital Asset felt the PM role on the 215S Century Master Plan possess very specific experience related to performing arts facilities, historical renovation, along with urban construction technologies. A review committee consisting of Wheeler Executive Director Gram Slaton, Wheeler board chairman Ron Erickson, City Asset Management personnel (Scott Miller, Steve Bossart, and John Laatsch), and a representative from the local architect partner Rowland & Broughton was convened to review the applicants. A Request for Proposal was issued and generated 27 respondents, from which the committee selected five for further consideration and onsite interviews in Aspen. After lengthy discussion and critical review, Pfocus LLC was selected as the ultimate best fit for the project, the most relevant comparable experience, and a service and fee structure that meets the City's needs. The contract scope is intended to assist the City and Wheeler through the preconstruction portion of the Integrated Project delivery process. We will utilize Pfocus in developing RFP criteria for the additional team members. We have developed an initial task list to assist the Wheeler team and the designers as we progress through commission review and approval. Scope is intended to increase through design to ensure team compliance with contemporary performing arts facility requirements, value engineering, estimating and budgeting, scheduling, and construction. Pfocus will immediately assist Wheeler and City Staff with the selection of contractors and consultants to: • Establish Project team communications, reporting, and financial management. • Assist with Architect contract negotiation, CMGC at Risk (contractor) solicitation, selection, and contracting. Commissioning agency solicitation, selection, and contracting. • Cost report development — Construction and Non -Construction Cost Estimates. • Assist with Design Phase Management, Special Meetings, • Guaranteed Maximum Price (GMP) development and review — Contractor and Subcontractor proposals. • Schedule development and review. Pfocus would be engaged during the construction phase by contract extension, pending scope and needs assessment. K FINANCIAL IMPLICATIONS: The IPD delivery process requires front loading of professional services to achieve enhanced data, more refined design decisions, constructability assessment, and improved cost estimates resulting in a reliable GMP (Guaranteed Maximum Price).Accurate cost estimating is vital for Council's decision making and for public discussion and funding votes. Purchasing focused services helps to keep the initial costs in line as project scope is refined. The Pfocus contract provides Basic Compensation in the amount of $259,726 and $43,025 for projected reimbursable and meeting allowance expenses. As the project moves into the construction phase, we will evaluate the appropriate service levels for that portion of work where required. T Wheel sbd funds for the initialwork scope. ��� The IPD ront loaded services ar� an iritotielp the ow, designer, and constructor produce a better product at the best cost, provide accurate GMP cost information, and produce long term project operational efficiencies. RESOURCE IMPLICATIONS: RECOMMENDATION: Staff recommends approval of the Program Manager contract for the Wheeler 215t Century Master Plan Project. ALTERNATIVES: If Council does not want to approve the staff recommendation, the City could return to the previous delivery methods, or postpone the decision. Postponement would mean less accurate financial and estimating information for Council deliberation and for public discussion. PROPOSED MOTION: "I move to approve Ordinance # ... to approve the Wheeler 21s` Century Master Plan Program Manager agreement" �p CITX MANAGER COMMENTS: ��¢dc.� a/t�x�tivaP dl lure cxwztyAc A - Resolution # B — Copy of signed contract — AIA Document B801 CMa - 1992 RESOLUTION # 7,3 (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND PFOCUS, LLC SETTING FORTH THE TERMS AND CONDITIONS REGARDING WHEELER OPERA HOUSE 21sT MASTER PLAN PROGRAM MANAGER 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 Pfocus, LLC, 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 Pfocus, LLC regarding Wheeler Opera House 21 S` Master Plan Program Manager 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: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 28, 2009. Kathryn S. Koch, City Clerk SAIA Document B801"CMa -1992 Standard Form of Agreement Between Owner and Program Manager where the Program Manager is NOT a Constructor AGREEMENT made as of the (Paragraphs deleted) 4th day of September in the year of 2009 BETWEEN the Owner: (Paragraphs deleted) The City of Aspen 130 South Galena Street Aspen, CO 81611 and the Program Manager Pfocus, LLC 1425 North 1st Street, Suite 100 Phoenix, Arizona 85004 for the following Project Wheeler Opera House 21at Century Master Plan Aspen, Colorado (Paragraphs deleted) The Architect is: Farewell Mills Getsch Architects, LLC 200 Forrestal Road Princeton, NJ 08540 The Owner and Program Manager agree as set forth below. ARTICLE 1 PROGRAM MANAGER'S RESPONSIBILITIES (Paragraph deleted) § 1.1 PROGRAM MANAGER'S SERVICES § 1.1.1 The Program Manager's services consist of those services performed by the Program Manager, Program Manager's employees and Program Manager's consultants as enumerated in Articles 2 and 3 of this Agreement and any other services included in Article 14. § 1.1.2 The Program Managers services shall be provided in conjunction with the services of an Architect, Contractor(s), and other Owner's consultants, (the Project Team) who will be selected by the Owner in selection process(es) where the Program Manger will be involved and contribute Its knowledge and expertise. ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical One in the left margin of this document indicates where the author has added necassary information and where the suitor has added to or deleted from the original AIA text. This document has important legal consequences. consultation with an attorney is encouraged with respect to its completion w modification. This document is intended to be used in conjunction with the 1992 edifions of AIA Documents B141/CMa, A101/CMa and A201/CMa. Inht AIA Document Isa01-Chia-1901 CopyrightO 1973, 1960 and 1992 by The American Institute of Archibcts. All rights reserves. WANNINU: This AIA' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAs Document, or any portion of 11, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document t was produced by AIA software at 11:3155 on 09/0g/2009 under Order No. 1000396152_1 which expires on 04/2212010, and is not for resat. User Not": (1649371754) § 1.1.3 The Program Manager shall provide sufficient organization, personnel and management to carry out the requirements of this Agreement in an expeditious and economical manner consistent with the interests of the Owner. § 1.1.4 The services covered by this Agreement are subject to the time limitations contained In Section 13.5.1. ARTICLE 2 SCOPE OF PROGRAM MANAGER'S BASIC SERVICES (Paragraph deleted) § 2.1 DEFINITION § 2.1.1 The Program Manager's Basic Services consist of those described in Sections 2.2 and any other services identified in Article 14 as part of Basic Services. § 2.2 PRE -CONSTRUCTION PHASE § 2.2.1 The Program Manager shall provide services as set forth in Exhibit A — Scope of Services for Program Manager. (Paragraphs deleted) ARTICLE 3 ADDITIONAL SERVICES § 3.1 GENERAL § 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 14, and they shall be paid for by the Owner as provided in this Agreement, at the hourly rates in Exhibit B — Hourly Rates, in addition to the compensation for Basic Services. The Optional Additional Services described under Section 3.3 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.2 are required due to circumstances beyond the Program Manager's control, the Program Manager shall notify the Owner in writing prior to commencing such services. If the Owner deems that such services described under Section 3.2 are not required, the Owner shall give prompt written notice to the Program Manager. If the Owner indicates in writing that ail or part of such Contingent Additional Services are not required, the Program Manager shall have no obligation to provide those services and the Owner shall have no obligation to pay for those services. § 3.2 CONTINGENT ADDITIONAL SERVICES § 3.2.1 Providing services required because of significant changes in the Project including, but not limited to, changes in size, quality, complexity or the Owners schedule. § 3.2.2 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work. § 3.2.3 Providing services made necessary by the termination or default of the Architect or a Contractor. by major defects or deficiencies in the Work of a Contractor, or by failure of performance of either the Owner or Contractor under a Contract for Construction. § 3.2.4 Providing services in evaluating an extensive number of claims, change in conditions, Change Order Requests, Change Directives, and/or Change Orders submitted by a Contractor or others in connection with the Work. § 3.2.5 Providing services in connection with a public hearing, mediation, or legal proceeding except where the Program Manager is party thereto. § 3.2.6 Attendance at Special Meetings, not included in Basic Services, at the request of the Owner § 3.3 OPTIONAL ADDITIONAL SERVICES § 3.3.1 Providing services relative to future facilities, systems and equipment. AIA Document 60011eCMa —1992. Copyright O 1973, 1980 and 1992 by The American InstindS of Amhitects. NI rights moved. WARNING: This AIAe IDK Document Is protected by U.S. Copyright Law and International Trestles. Unauthorized reproduction or distribution of this NO timumenp or any portion of it, may result In aseem civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIAsoflwaro at 11:33:55 on OW092009 under Order No. 1000398152_1 which axpimsan 04/2212010, and is not formals. ( User Notes: 1069371754) § 3.3.2 Providing services to investigate existing conditions or facilities or to provide measured drawings thereof. § 3.3.3 Providing services to verify the accuracy of drawings or other information furnished by the Owner. § 3.3.4 Providing services required for or in connection with the Owner's selection, procurement or installation of furniture, furnishings and related equipment. § 3.3.5 Providing services for tenant improvements. § 3.3.6 Providing any other services not otherwise included in this Agreement. § 3.3.7 Being formally appointed the LEED Project Administrator as defined by the United States Green Building Council. § 3.3.8 Providing services to manage the implementation of an Owner Consolidated Insurance Program (OCIP). § 3.3.9 Providing the services of a Special Inspector as required by building code. ARTICLE 4 OWNER'S RESPONSIBILITIES § 4.1 The Owner shall provide full information regarding requirements for the Project, including a program which shall set forth the Owner's objectives, schedule, constraints and criteria, Including space requirements and relationships, flexibility, expandability, special equipment, systems, and site requirements. § 4.2 The Owner shall establish and update an overall budget for the Project based on consultation with the Program Manager, Contractor, and Architect, which shall include the Construction Cost, the Owners other costs and reasonable contingencies related to all of these costs. § 4.3 If requested by the Program Manager, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. § 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner, or such authorized representative, shall render decisions in a timely manner pertaining to documents submitted by the Program Manager in order to avoid unreasonable delay in the orderly and sequential progress of the Program Manager's services. § 4.5 The Owner shall retain an architect whose services, duties and responsibilities are described in the Agreement between Owner and Architect. The Owner shall retain members of the Project Team, using agreements prepared with the involvement and concurrence of the Program Manager. The Terms and Conditions of the Agreements Between the Owner and Architect, and other members of the Project Team shall be furnished to the Program Manager. The Program Manager shall not be responsible for actions taken by the Architect. § 4.6 The Owner shall furnish civil engineering, commissioning, materials testing and inspections, surveying, structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. § 4.7 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractors' Applications for Payment or to ascertain how or for what purposes the Contractors have used the money paid by or on behalf of the Owner. IMt. MADocument aeol1eCMs+1992. CopyllpM®1973, 1980 and 1992 by The American Institute of Ao31itecb. All rights Manned. WARNING: This Al e Document is protected by U.S. Copyright Law and Intemationat Treaties. Unauthorized reproduction or distribution of this NO Document, or any 3 portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum astent possible under the law. This document ( was produced by AIA sofhwre 911:33:55 on 09109/20DO under Order No.1000398152_1 which expires on 04/22/2010, and Is not for resale. User NOW: (1649371754) § 4.8 The Owner Mall furnish the Program Manager with a sufficient quantity of Construction Documents, and access to adequate space at the Project site. The Program Manager will be providing its employees with cell phones and all other necessary computer hardware and software at its expense. § 4.9 The services, information and reports required by Sections 4.5 through 4.8 shall be furnished at the Owner's expense, and the Program Manager shall be entitled to rely upon the accuracy and completeness thereof. § 4.10 Prompt written notice shall be given by the Owner to the Program Manager and Project Team members if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. § 4.11 The Owner reserves the right to perform construction and operations related to the Project with the Owner's own forces, and to award contracts in connection with the Project which are not part of the Program Managers responsibilities under this Agreement. The Program Manager shall notify the Owner if any such independent action will interfere with the Program Manager's ability to perform the Program Managers responsibilities under this Agreement. When performing construction or operations related to the Project, the Owner agrees to be subject to the some obligations and to have the same rights as the Contractors. § 4.12 Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Program Managers services and the progress of the Work. ARTICLE 5 CONSTRUCTION COST $ 5.1 DEFINITION § 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Architect. § 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Contractors' overhead and profit. In addition, a reasonable allowance for contingencies shall be included by market conditions at the time of bidding and for changes in the Work during construction. Construction Cost shall not include the compensation of the Program Manager and Program Manager's consultants. § 5.1.3 Construction Cost does not Include the compensation of the Architect and Architect's consultants, and the Owners other consultants costs of the land, rights -of -way, financing or other costs which are the responsibility of the Owner as provided in Article 4. If any portion of the Program Managers compensation Is based upon a percentage of Construction Cost, then Construction Cost, for the purpose of determining such portion, shall not include the compensation of the Program Manager or Program Managers consultants. § 5.2 RESPONSIBILITY FOR CONSTRUCTION COST § 5.2.1 Evaluations of the Owners Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Contractor represent the Program Managers best judgment as a person or entity familiar with the construction industry. It is recognized, however, that neither the Program Manager, nor the Owner, nor any other member of the Project Team has control over the cost of labor, materials or equipment, over Contractors' methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Program Manager cannot and does not warrant or represent that bids or negotiated prices will not vary from the Project budget proposed, established or approved by the Owner, or from any cost estimate or evaluation prepared by the Contractor. § 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget unless such fixed limit has been agreed upon in writing and signed by the parties hereto. If such a fixed limit has been established, the Project Team shall IdiL AIA Document 6801"Caa � fall Copyright 01973,1980 and 1992 by The American lnsdWte of Artlulact$. All rhiml reserves. wenwmu: lms., Document Is protected by U.B. Copyright Law and International Trestles. Unauthorized reproduction or distribution of this A1Ae Document, or any portion of it, may result in were civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:33:55 on 09/09=9 under Order No.1000396152_1 which expires on 0412212010, and is not for resale. User Notes: (1649371754) be permitted to include contingencies for design, bidding and price escalation, and shall collaborate internally to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to suggest reasonable adjustments in the scope of the Project, and to suggest inclusion of alternate bids in the Construction Documents to adjust the Construction Cost to the fixed limit. Fixed limit of Construction Cost shall be established through the Preconstruction Services process and shall not be increased after the passage of the bond issue by the voters on the ballot in November of 2010. (Paragraph deleted) § 5.2.4If a fixed limit of Construction Cost is exceeded by the Contractor's GMP estimate of Construction Cost for the Project, the Owner may, at its sole discretion: .1 give written approval of an increase in such fixed limit; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 if the Project is abandoned, terminate immediately in accordance with Section 9.6; or .4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. § 5.2.5 If the Owner chooses to proceed under Section 5.2.4.4, the Program Manager, Without additional charge, shall cooperate with the Owner and Project Team as necessary to bring the Construction Cost Within the fixed limit, if established as a condition of this Agreement. ARTICLE 6 CONSTRUCTION SUPPORT ACTIVITIES § 6.1 Construction support activities, defined as services made necessary to manage more than three (3) prime Contractors on a single site In lieu of a single general contractor, when requested in writing by the Owner to facilitate the construction of the Project, if provided by the Program Manager, shall be Additional Services to the Agreement or governed by separate contractual agreements, as mutually agreed. § 6.2 Reimbursable expenses listed in Article 14 for construction support activities may be subject to trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment which shall accrue to the Owner, and the Program Manager shall make provisions so that they can be secured. ARTICLE 7 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS § 7.1 The Drawings, Spedfications and other documents prepared by the Architect are Instruments of Service through which the Work to be executed by the Contractors is described. The Owner is the copyright owner of the Instruments of Service. The Program Manager may retain one record set. The Program Manager shall not own or claim a copyright in the Drawings, Specifications and other documents. The Drawings, Specifications and other documents prepared by the Architect are owned by the Owner, and copies thereof furnished to the Program Manager, are for use solely with respect to this Project. They are not to be used by the Program Manager on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner. The Program Manager is granted a limited license to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect appropriate to and for use in the performance of the Program Manager's services under this Agreement. All copies made under this license shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents. Submittal or distribution to meet official regulatory requirements or for other purposes in connection With this Project is not to be construed as publication in derogation of the Owner's copyright or other reserved rights. AIA Documard 9801i°CYa-1992. Copyright ®1973, 1980 and 1992 by The American Institute of Architects. All rights reserved. WARNING: This Al e init.Document is protected by U.S. Copyright Levi and International Trestles. Unauthorized reproduction or distribution of this AIA° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extant possible under the law. This document was produced by AIA software at 11:33:55 on 09/O9)2009 under Order No.1000395152_1 which expires on 04=2010. and is me for resale. User Notes: (1649371754) § 7.2 Ownership of Documents. All draw ngs, specifications, data, studies, surveys, maps, models, photographs, reports or other documents or material, whether in digital electronic format or paper copy, whether finished or unfinished, prepared by Program Manager for the Owner on this Project are Instruments of Service. The Owner shall be permitted to retain copies, including electronic and reproducible copies, of the Instruments of Service and other documents produced by the Program Manager in connection with the Project The Owner shall be permitted to use such Instruments of Service on this Project, but the Owner agrees not to use the Instruments of Service on other projects, and the rights, title and interest in the Instruments of Service are specifically retained by the Program Manager. § 7.3 Termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Program Manager pursuant to this Agreement shall belong to the Owner for its purposes as it deems necessary on this project. ARTICLE 8 DISPUTE RESOLUTION (Paragraph deleted) § 8.1 Both parties agree to non -binding mediation as a condition precedent to litigation to resolve any contractual dispute by submitting the dispute to a mutually agreeable mediation group. Mediation will take place in Aspen, Colorado, using one mutually acceptable mediator. If Owner and Program Manager are unable to agree, a mediator will be chosen by each and those two mediators will select one mediator to conduct the mediation. If mediation fails, the jurisdiction and venue of any suit to enforce the terms of this Agreement shall lie in Pitkin County, Colorado, each party shall bear its own respective cost, expenses and attorney fees unless otherwise agreed. (Paragraphs deleted) ARTICLE 9 TERMINATION, SUSPENSION OR ABANDONMENT § 9.1 This Agreement may be terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the terminatlon. The non -performing party shall be given written notice specifying the nonperformance and shall be given seven days to begin to cure said nonperformance, and continue to cure said nonperformance, as a condition precedent to termination. In the event of termination for any reason not the fault of the Program Manager, the Program Manager shall be compensated for services performed prior to notice of termination, and associated Reimbursable Expenses then due. If a termination by the Owner is subsequently determined to be wrongful, such termination shall automatically be converted to a termination for the Owner's convenience. § 9.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Program Manager shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Program Manager's compensation shall be equitably adjusted to provide for expenses incurred in the Interruption and resumption of the Program Manager's services. § 9.3 This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Program Manager in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Program Manager may terminate this Agreement by giving written notice. § 9.4 Failure of the Owner to make payments to the Program Manager of undisputed amounts properly due in accordance With this Agreement shall be considered substantial nonperformance and cause for termination. § 9.51f the Owner fails to make payment of undisputed amounts when properly due the Program Manager for services and expenses, the Program Manager may, upon seven days' written notice to the Owner, suspend performance of services under this Agreement. Unless payment in full is received by the Program Manager within seven days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the Program Manager shall have no liability to the Owner for delay or damage caused to the Owner because of such suspension of services. AIA Document 6801"CMa-1992. copyright 0 1973, 1980 and 1992 by The American Institute of Amhhects. All rights mmad. WARNING: This AIAe Init Docamest Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAo Occurrent, or any Portion of it. may mutt In severe cWli and criminal Penalties, and will be prosecuted to the maximum extent possible under the law. This docunent / was produced by ALA software at 1173:55 on OW0912009 under Omer No. 1000396152_1 wNch expires on 0412212010. and is not for resale. User Notes: (18493717541 § 9.6 The Owner may terminate this Agreement for the Owner's sole convenience, for any reason or no reason. In the event of termination by the Owner for any reason not the fault of the Program Manager, the Program Manager shall be compensated for services performed prior to notice of termination, and associated Reimbursable Expenses then due. § 9.6.1 Notwithstanding the above, in the event the voters in the City of Aspen do not approve the bond question anticipated to be on the ballot November 2010, this Agreement may be terminated for the Owner's convenience and no subsequent Suspension or Termination Expenses or fees will be due or will accrue from the Owner to the Program Manager. § 9.7 The Owner reserves the right to reduce the scope of the Project for its convenience, in which event the Program Manager's compensation shall be equitably adjusted. ARTICLE 10 WSCELLANEOUS PROVISIONS § 10.1 Unless otherwise provided, this Agreement shall be governed by the law of the place where the Project is located. § 10.2 Terms In this Agreement shall have the same meaning as those in the modified edition of AIA Document A295-2008, General Conditions of the Contract for Integrated Project Delivery, incorporated herein. § 10.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued based on the applicable statutes of limitations in force at the date of signing of this Agreement. § 10.4 Waivers of Subrogation. The Owner and Program Manager waive all rights against each other and against the Contractors, Architect, consultants, agents and employees of any of them, for damages, but only to the extent covered by property insurance purchased for the Project during construction, except such rights as they may have to the proceeds of such insurance as set forth in the modified edition of AIA Document A295-2008, General Conditions of the Contract for Integrated Project Delivery. The Owner and Program Manager each shall require similar waivers from their Contractors, Architect, consultants, agents, and persons or entities awarded separate contracts administered under the Owners own forces. § 10.5 The Owner and Program Manager, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors. assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Program Manager shall transfer or assign this Agreement without the written consent of the other. Sub -Contracting, if authorized, shall not relieve the Program Manager of any of the responsibilities or obligations under this agreement. Program Manager shall be and remain solely responsible to the Owner for the acts, errors, omissions or neglect of any subcontractors, officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Program Manager to the extent of the subcontract. The Owner shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub -contractor. § 10.6 This Agreement represents the entire and integrated agreement between the Owner and Program Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Program Manager. § 10.7 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Program Manager. § 10.7.1 This agreement has been created jointly and ambiguity cannot be construed against either party. § 10.8 Unless otherwise provided in this Agreement, the Program Manager and the Program Manager's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or InIt. NA Document agol-Csta-1it1f2. Copyrigte®1973. 1990 and 1092 by The American Institute of Architect& All rights msarved. WARNING: This AIA° Document is protected by U.S. Copyright law and International Trestles. Unaumorl"d reproduction or distribution of this AIA® Document, or any 7 portion of it, may result in severe civil and ermined penalties, and will be prosecuted to the maximum extent possible under the law. This document f was produced by AIA sofbvare at 11:33:55 on 0910WM9 under Order No. 1000396152_1 which expires on 04127J2010, and is not for resale. ( Uses, Nolan: 1399371754) exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. § 10.9 The Program Manager shall have the right to discuss the project, and the Program Manager's involvement in the project, with current, future or prospective clients, and/or in its promotional material § 10.10 No construction is permitted on Sundays, during the Food and Wine Festival in June (Friday through Sunday), Memorial Day weekend, 4th of July day and/or weekend if it falls on a Friday or Monday, Labor Day weekend, Thanksgiving day, and Christmas week (12125 —1/1). § 10.11 Tax -Exemption. All purchases of supplies, construction or building materials shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. The Owner's State of Colorado tax Identification number is 98-04557. The Owner's Federal Tax Identification Number is 84-6000563. § 10.12 Covenant Against Contingent Fees. The Program Manager warrants that she has not employed or retained any company or person, other than a bona fide employee working for the Program Manager, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. § 10.13 Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Program Manager shall be, and shall perform as, an Independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the Owner. No agent, employee, or servant of Program Manager shall be, or shall be deemed to be, the employee, agent or servant of the Owner. Owner is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Program Manager. None of the benefits provided by Owner to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from Owner to the employees, agents or servants of Program Manager. Program Manager shall be solely and entirely responsible for its acts and for the acts of Program Manager's agents, employees, servants and subcontractors during the performance of this contract. Program Manager shall indemnify Owner against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment Insurance, social security and income tax law, with respect to Program Manager and/or Program Manager's employees engaged in the performance of the services agreed to herein. § 10.14Indemnity: § 10.14.1 Indemnification of the Owner. Program Manager agrees to indemnify and hold harmless the Owner, its officers, employees, insurers, and self-insurance pool (the "Owner Indemnitees"), from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or property damage, or any other loss of any kind whatsoever, including all attorneys' fees and costs, which arise out of or are in any manner connected with this contract, but only to the extent that such injury, loss, or damage is caused in whole or in part by the acts, omissions, errors, professional errors, mistake, negligence, or other fault of the Program Manager, any subcontractor of the Program Manager, or any officer, employee, representative, or agent of the Program Manager, or which arises out of any Worker's Compensation claim of any employee of the Program Manager or of any employee of any subcontractor of the Program Manager. The Program Manager shall reimburse the Owner for the defense costs, including attomeys' fees, incurred by the Owner in connection with any such liability, claims, or demands if it is determined that such injury, loss, or damage was caused In whole or in part by the acts, omissions, or other fault of the Program Manager, its officers, or its employees or anyone for whom it is liable. In such event, the Program Manager shall reimburse the Owner for that portion of any judgment, damages or loss, including attorneys' fees and costs, attributable to such acts, omissions, or other fault of the Program Manager, its officers, or employees, or anyone for whom it is liable. § 10.14.2 To the extent permitted by applicable law, the Owner in its Agreements with the respective AIA Document 5801`"CIII Copyright* 1973, 1960 and 1992 by The American Institute or ArehiteaN. All rights reserved. WARNING: This AIA` INL Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this NO Document, or any portion of it. may result in ssysra civil and criminal penalties, and will be pmsecuted to the maximum extent possible under the law. This docunent ( was produced by AIA software at 11:33:55 on 09/09/2009 under Onler No. 1000396152_1 which exphes on 04122/2010, and Is not for resale. User Notes: (1649371754) Project Team members shall cause the Project Team members to indemnify and hold the Program Manager harmless from and against all claims, demands, suits, actions, payments, judgments, loss, damage, liability, cost and expense (including attorneys' fees) arising out of injury (including death) to any person or damage to any property but only to the extent caused by the respective Project Team member's intentional acts, negligence, or gross negligence. In such event, the Project Team members shall reimburse the Owner and the Program Manager for that portion of any judgment, damages or loss, Including attorneys' fees and costs, attributable to such acts, omissions, or other fault of the Project Team member, its officers, or employees, or anyone for whom it is liable. § 10.14.3 Nothing in this Agreement is intended to broaden, expand, limit or change in any way the damages for which the Owner or the Program Manager may or may not be liable to their employees under their current worker's compensation and benefit plans. § 10.15 Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project not expressly incorporated in this writing. § 10.16 Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail, return receipt requested, or in accordance with Section 12.2 of A295 — 2008 General Conditions, to: Owner. Program Construction Manager. City Manager Richard Pfannenstiei, Principal City of Aspen Pfocus, LLC 130 South Galena Street 1425 North 1at Street, Suite 100 Aspen, Colorado 81611 Phoenix, Arizona 85004 § 10.17 Non -Discrimination. No discrimination because of race, color, creed, sex, marital status, affectionai or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Program Manager agrees to meet all of the requirements of Owner's municipal code, Section 13-98, pertaining to non- discrimination in employment. 110.18 Waiver. The waiver by the Owner of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the Owner. Forbearance or indulgence by the Owner in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Program Manager to which the same may apply and, until complete performance by Program Manager of said term, covenant or condition, the Owner shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. § 10.19 Execution of Agreement by Owner. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement in excess of twenty-five thousand dollars ($25,000.00) shall not be binding upon the Owner unless duly executed by the Mayor of the City of Aspen, or a duly authorized official in his absence, following City Council approval. § 10.20 Illegal Aliens — CRS 8.17.5.101 & 24-76.5-101 (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the Owner, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who Init. AIA Doeumsrtt a50 -CNa-1992. Copyrlgh101973. 1900 and 1992 by The American Inshtubs of Amhltecle. All rights reserved. WARNING: This AlAe Document Is protected by US. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this NO Document, or any 9 portion of it, may result in severe chili and crbninal panallies, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software st 11:33:55 on 09109/2009 under Order No. 1000398152_1 which expires on 04122/2010, and Is not for resale. User Notes: (1649371754) knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the Owner. "E-verify program" means the electronic employment verification program created in Public law 208, 104th Congress, as amended, and expanded in Public law 156, 108th Congress, as amended, that Is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. time: (c ) By signing this document, Program Manager certifies and represents that at this (i) Program Manager shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and (Ii) Program Manager has participated or attempted to participate in either the a -verify program or the department program in order to verify that new employees are not illegal aliens. (d) Program Manager hereby confirms that: (i) Program Manager shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (ii) Program Manager shall not enter into a contract with a subcontractor that fails to certify to the Program Manager that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (III)_ Program Manager has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the a -verify program or the department program. (iv) Program Manager shall not use the either the a -verify program or the department program procedures to undertake pre -employment screening of job applicants while the Public Contract for Services is being performed. (v) If Program Manager obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Program Manager shall: (1) Notify such subcontractor and the Owner within three days that Program Manager has actual knowledge that the subcontractor is employing or Incl. AIA Document 01101-CAla-1992. Copyright 1973, 1980 and 1992 by The American Institute of Archlbects. All rights reserved. WARNING: This AIA' Document is protected by U.S. Copyright Law and international Trestles. Unauthorized reproduction or distribution of this AIA" Document, or any 10 portion of It, may result in severe bull and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document ( w" produced by AIA software at 11:33:55 on 09109I2009 under Order No, 1000396152 1 which expires on 04122=10, and is not for resale. User Net": (1649371754) subcontracting with an Illegal alien; and (2) Terminate the subcontract with the subcontractor if Within three days of receiving the notice required pursuant to this section the subcontractor does not stop employing or contracting with the illegal alien; except that Program Manager shall not terminate the Public Contract for Services With the subcontractor if during such three days the subcontractor provides infornation to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Program Manager shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5). C.R.S. (vii) If Program Manager violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may terminate this Agreement. If this Agreement Is so terminated, Program Manager shall be liable for actual and consequential damages to the Owner arising out of Program Manager's violation of Subsection 8-17.5-102, C.R.S. § 10.22 General Terms. (a) It is agreed that neither this agreement nor any of its terns, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. ARTICLE 11 INSURANCE § 11.1 PROGRAM MANAGER'S LIABILITY INSURANCE §11.1.1 Program Manager's Insurance (a) Program Manager 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 Program Manager pursuant to the indemnification provision. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Program Manager shall riot be relieved of any liability, claims, demands, or other obligations assumed pursuant to its indemnification obligation 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. (b) Program Manager shall procure and maintain, and shall cause any subcontractor of the Program Manager to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with fortes and insurance acceptable to the Owner. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Program Manager pursuant to the indemnity obligations. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable Colorado laws for any employee engaged in the performance of work under this contract, and Employers' Liabillty insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND Init. AIADocument 89011eCMa-1992. CopyrightO 1973. 1980 and 1992 by The American Inseods of Architects. All rights reserved. WARNING: This Ate Document is protected by U.S. Copyright Law and International Treacles. Unauthorized reproduction or distribution of this Ale Document, or any 11 portion of N, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document ( was produced by AIA software at 11:33:55 on 09/09/2009 under Omer No. 1000396152_1 which expires on 04=2010, and is not for roses. User Nobs; (1949371754) DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. The policy shall contain a waiver of subrogation in favor of the Owner. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, Independent contractors, products, and completed operations. The policy shall contain a severability, of interests provision and a waiver of subrogation in favor of the Owner. (lit) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate With respect to each Program Manager's owned, hired and non -owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the Owner. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The General liability and automobile liability policies required in Sections 11.1.1.ii and 11.1.1.1ii above shall be endorsed to include the Owner and the Owner's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance cabled by the Owner, its officers or employees, or carried by or provided through any insurance pool of the Owner, shall be excess and not contributory insurance to that provided by Program Manager. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Program Manager shall be solely responsible for any deductible losses under any policy required above. (d) The Program Manager shall submit Certificates of Insurance confirming the required insurance coverages prior to commencement of the Work. The Certificate of Insurance provided by the Program Manager shall be completed by the Program Manager's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the Owner prior to commencement of the contract, and shall be in a mutually acceptable ACCORD forth. The certificate shall identify this contract and shall provide that the coverages 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 Owner. (a) Failure on the part of the Program Manager to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which Owner may immediately terminate this contract, or at its discretion Owner may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by Owner shall be repaid by Program Manager to Owner upon demand, or Owner may offset the cost of the premiums against monies due to Program Manager from Owner. (f) Owner reserves the right to request and receive a certified copy of any policy and any endorsement thereto. § 11.2 The parties hereto understand and agree that Owner is relying on, and does not waive or intend to AIA Dooumem a901'*CDa-1992. Copyright O 1913. 1980 and 1992 by The American Institute Of Amhifecl3. All rights reserved. WARNING: This AlA* tmlf. Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA* Document, or any 12 portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This docunad f was produced by AIA software at 11:33:55 w 0g/0912009 under Order No. 1000396152_1 which expires on 04122(2010, and is nbt for resale. User Nam: (1649371754) waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 at seq., C.R.S., as from time to time amended, or otherwise available to Owner, its officers, or its employees. §11.3 Owner's Insurance. The parties hereto understand that the Owner is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Program Manager for inspection during normal business hours. Owner makes no representations whatsoever with respect to specific coverages offered by CIRSA. Owner shall provide Program Manager reasonable notice of any changes in its membership or participation in CIRSA, ARTICLE 12 PAYMENTS TO THE PROGRAM MANAGER (Paragraphs deleted) § 12.1 PERSONNEL EXPENSE § 12.1.1 Personnel Expense are limited to the hourly rates reflected on Exhibit B — Hourly Rates. § 12.2 REIMBURSABLE EXPENSES § 12.2.1 Reimbursable Expense are In addition to compensation for Basic and Additional Services and include expenses incurred by the Program Manager and Program Managers employees and consultants in the interest of the Project, as identified in the following Clauses. § 12.2.1.1 Expense of transportation authorized in connection with the Project, expenses in connection With authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. § 12.2.1.2 Expense of reproductions, postage, express deliveries, electronic facsimile transmissions and handling of Drawings, Specifications and other documents, but only when such documents are needed from the Program Manager for the Owner's construction procurement process. The Owner and Project Team will furnish the Program Manager with six (5) complete sets of documents for each project at no charge. The Program Manager has included other costs of this type in Its Fees. § 12.2.1.3 If requested and authorized In advance by the Owner, expense of overtime work requiring higher than regular rates for non-exempt employees, only. Salaried and exempt employees shall not charge overtime rates, or for hours worked in excess of 40 hours per week. § 12.2.1.4 Expense of additional insurance coverage or limits requested by the Owner in excess of that specified in this Agreement. § 12.3 PAYMENTS ON ACCOUNT OF 13ASIC SERVICES § 12.3.1 An initial payment as set forth in Section 13.1 is the minimum payment under this Agreement. § 12.3.2 Subsequent payments for Basic Services shall be made monthly and, where applicable, shall be In proportion to services performed within each phase of service, on the basis set forth in Section 13.2.1. (Paragraphs deleted) § 12.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES AND REIMBURSABLE EXPENSES § 12.4.1 Payments on account of the Program Manager's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Program Manager's statement of services rendered or expenses incurred. § 12.5 PAYMENTS WITHHELD § 12.&1 No deductions shall be made from the Program Managers compensation on account of penalty, liquidated damages or other sums Withheld from payments to Contractors, or on account of the cost of changes in Work other than those for which the Program Manager has been adjudicated as liable for or agreed to In writing. AIA DOCurnsint 8301`eCMa-IM. CopyrlgM01973. 1980 and 1992 by The American Institute of Architects. All rights nu arced. WARNING: This AIA' 1D1f. Document Is protected by U.S. Copyright Law, and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any 13 portion of It, may result in severe ctvil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 11:33:55 on 09/09/2009 under Order No. 1000396152_1 which expires on 0412212010. and is not for resale. User Notes: (1649371754) § 12.6PROGRAM MANAGER'S ACCOUNTING RECORDS (Paragraph deleted) § 12.6.1 Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually convenient times. ARTICLE 13 BASIS OF COMPENSATION The Owner shall compensate the Program Manager as follows: § 13.1 AN INITIAL PAYMENT of Zero ($ [0] ) shall be made upon execution of this Agreement and credited to the owner's account at final payment. § 13.2 BASIC COMPENSATION § 13.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services included in Article 14 as part of Basic Services, Basic Compensation shall be computed as follows: For Pre -Construction Phase Services: (Paragraph deleted) Payment will be made on the basis of a total fixed fee of $259,726 through the approval by Owner of the GMP, which shall be paid as follows: Conceptualization Phase: $ 75,686 Design Phase: $184,040 For Construction Phase Services: (Paragraph deleted) Construction Phase Services will be negotiated and added to the Agreement by Amendment at a later time, if required. § 13.3 COMPENSATION FOR ADDITIONAL SERVICES AND SPECIAL MEETING ALLOWANCE § 13.3.1 FOR ADDITIONAL SERVICES OF THE PROGRAM MANAGER, as described in Article 3, and any other services included in Article 14 as Additional Services, compensation shall be computed as follows: (Paragraphs deleted) Additional Services will be paid for at the hourly rates listed in Exhibit B, which is incorporated herein by reference. Special Meetings will be paid for, when requested by the Owner, based on the hourly rates listed in Exhibit B up to the Special Meeting Allowance of $9,600 for both Conceptualization and Design Phases. 'T § 13.4 REIMBURSABLE EXPENSES § 13.4.1 FOR REIMBURSABLE EXPENSES, as described in Section 12.2, and any other items included In Article 14 as Reimbursable Expenses, a multiple of one and ten hundredths ( 1.10 ) times the expenses incurred by the Program Manager and the Program Manager's employees and consultants in the interest of the Project. Reimbursable expenses for Basic Services will be paid on the basis of actual costs, not to exceed the following amounts: Conceptualization Phase $ 5,540 — Design Phase $22,505 Reimbursable expenses for the Special Meeting Allowance are based on actual costs up to $5,380 for Conceptualization and Design Phases. IDIt MA Document 5601-CMS -199I. Copyright O 1973, 1950 and 1992 by Thy Document is protected by U.S. Copyright Law and International Treaties. portion of lt, may result In saverechill and criminal pan sidles, and will be t was produced by AMsolkwarest 11:33i55m 09I09t2009under Order Ne.10C Law Notes: xxxiute or ArchiteM. NI manta reservao. wAKNnvu: 1 ma a,w red reproduction or distribution of this AIAe Document, or any 14 d to the maximum extent possible under the law. This document which expires on 04,2212010, and Is not for resale. (1649371754) § 13.5 ADDITIONAL PROVISIONS § 13.5.1 IF THE BASIC SERVICES covered by this Agreement have not been completed within Thirty (30 ) days after approval of the Guaranteed Maximum Price proposal, through no fault of the Program Manager, extension of the Program Manager's services beyond that time shall be equitably adjusted. § 13.5.2 Payments are due and payable thirty ( 30 ) days from the date of the Program Manager's invoice. Amounts unpaid forty-five ( 45 ) days after the invoice date shall bear interest at the rate entered below. 8% compounded annually § 13.5.3 The hourly rates set forth for Additional Services in Exhibit B — Hourly Rates shall be annually adjusted in accordance With normal salary review practices and increases in overhead of the Program Manager and will not exceed once per year, or represent more than a 2% increase in any single year. ARTICLE 14 OTHER CONDITIONS OR SERVICES § 14.1 The Owner shall endeavor to communicate with the Project Team through the Program Manager, or to copy the Program Manager on all communications, except in an emergency endangering life or property, in order to maintain dear and coordinated communications between the Program Manager, Architect, Contractor, and the Owner. § 14.2 If the Program Manager wishes to make a claim for an increase in its Fee, or an extension in the data for Completion of Basic Services, he shall give the Owner written notice thereof within twenty (20) days after the occurrence of the event giving rise to such claim. This notice shall be given by the Program Manager before proceeding to execute any Work. Claims arising from delay shall be made within a reasonable time after the delay. § 15.1 LIMITS ON INSURANCE Type of insurance Limit of liability See Section 11.1 Above. See Section 11.1 Above. This Agreement entered into as of the day and year first written above. OWNER PROGRAM MANAGER City of Aspen Pfocus, LLC (Signature) ( ignatur ) Michael C. Ireland, Mayor Richard Pfannenstiel, Principal Attested By: Init ALA Document 89011eCMa-1992. Copyright O 1973, 1950 and 1992 by The American lra6tute of Architects. NI rights reserved. WARNING: This At e Document Is protectad by U.S. Copyright law and International Treaties. Unauthorized reproduction or distribution of this Al a Document, or any 15 portion of it, may result In severe ch91 and criminal penalties, and will be prosecuted to the maximum extant possible under the law. This document / was produced by AIA software at 11:33:55 on 0=9/2009 under Order No. 1000306152_1 which expires on 04/2212010, and is not for resale. User mom: (1649371754) EXHIBIT "A" — SCOPE OF SERVICES PROGRAM MANAGER CITY OF ASPEN WHEELER OPERA HOUSE 21ST CENTURY MASTER PLAN PROJECT OVERVIEW Project Description: The scope of work is for the Program Manager services relative to the Wheeler Opera House 21" Century Master Plan. This Project consists of a proposed expansion to the historic performing arts venue originally constructed in 1889. The nearly 30,000 square feet addition plans to feature a 275 seat theater, multi -purpose room, lobbies, box office, administrative offices, dressing rooms, loading dock, along with a complement of front -of -house patron amenities and back -of -house support spaces. A Total Project Budget is projected as $30 million, which includes Construction and Non -Construction Costs. Project Team: For this scope of services, the Project Team includes the "Owner", which includes the City of Aspen (COA) and Wheeler Opera House (WOH) representatives, the "Architect", Farewell Mills Gatsch Architects, LLC (FMGA), the "Program Manager", Pfocus, LLC, the selected "Contractor", the selected "Commissioning Agent" and additional stakeholders selected to participate in an advisory capacity during the development of the Project (such as user group and technical representatives). Project Duration: The Owner's key schedule milestone for the Program Manager scope of services is completion of the Contractor's Guaranteed Maximum Price (GMP) Proposal by 15 August 2010 for the Wheeler Opera House 21" Century Master Plan. Based on the current status of the Project and the Integrated Project Delivery Method, this goal requires completion of the Conceptualization, Criteria Design, and Detailed Design Phases. PROGRAM MANAGEMENT SCOPE OF SERVICES 1. CONCEPTUALIZATION PHASE (Project Start -Up and Concept Documents) 1.1 General Requirements 1.1.1 Management and Leadership: Provide Project Team leadership to coordinate, facilitate, and manage the Team's endeavors to deliver the Project Start -Up and Program Review phase consistent with the Project goals. Assist with critical decision -making for the Project including decisions pertaining to the overall project approach. Provide Project Management staff to deliver these services to support the assignment for the duration of this Project. 1.1.2 Conceptualization Phase Duration: Conceptualization Phase services are for a period of approximately twelve weeks. These services commence as of 15 September 2009. 1.1.3 Special Meetings: Attend City Council, Historic Preservation Commission, and Planning & Zoning Department meetings that have project issues on the agenda. The Special Meeting Allowance anticipates a total of three meetings during this phase. Wheeler Opera House 21"Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 1 of 1.1.4 Management Team Meetings: Participate in bi-monthly telephone conferences with Owner and Architect to discuss the overall progress of the project. Maintain Project Status Report including action items for follow up. 1.2 Project Start -Up 1.2.1 Information Review: Receive and review information pertaining to the Project in a timely manner. 1.2.2 Project Start-up Meeting: Schedule and facilitate Project Start -Up Meeting with Owner to understand preliminary scope and define additional stakeholders, individual roles and responsibilities, approval process, project procedures and governance, schedule and budget. Prepare and distribute meetings notes. 1.2.3 Architect Contract Negotiation: Assist Owner with the contract negotiation for the Architect and subconsultant team. 1.2.4 Contractor Selection Process: Assist Owner with the solicitation, evaluation and selection of a qualified Contractor through a City of Aspen Request For Qualification (RFQ)/Request For Proposal (RFP) process. Provide a preliminary scope of services and preliminary project schedule for inclusion into the Request for Qualification (RFQ). Identify Contractors to notify. Review and rank Statements of Qualification and Proposal received and participate in interviews of short listed firms. The Contractor will serve as the prime constructor, and to the extent necessary, assemble a team of trade subcontractors. 1.2.5 Contractor Contract Negotiation: Assist Owner with the contract negotiation for the Contractor. 1.2.6 Commissioning Agent Selection Process: Assist Owner with the solicitation, evaluation and selection of a qualified Commissioning Agent through a City of Aspen Request For Qualification (RFQ) process. Identify Commissioning Agents to notify. Review and rank Statements of Qualification received and participate in interviews of short listed firms. 1.2.7 Commissioning Agent Contract Negotiation: Assist Owner with the contract negotiation for the Commissioning Agent. 1.2.8 Project Directory: Prepare a written directory of Project participants, distribute to the Project Team, and provide updates as needed. This directory includes contact names, organization, Project role, addresses, telephone numbers, facsimile numbers, and e- mail addresses. 1.3 Concept Documents 1.3.1 Project Program Review: Review the Project Program developed by the Architect in collaboration with the Project Team, which defines the aesthetic, functional, quality, cost, and schedule goals. 1.3.2 Cost Report: Prepare and distribute a Cost Report in conjunction with the Owner and Architect to document the status of the Construction and Non -Construction Cost estimates for the Design Phase duration described below. This report presents the current estimates relative to the total project budget, which is based upon the agreed upon Wheeler Opera House 21 ° Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 2 of 6 consensus -based program goals. Update the report on a periodic basis and/or as significant changes occur. 1.3.3 Summary Project Schedule: Prepare and distribute the summary Project Schedule in conjunction with the Owner and Architect, which includes critical team activities for the Design Phase duration described below. The schedule is a Critical Path Method (CPM) type. Update and distribute the schedule as significant changes occur. 1.3.4 Project Program Approval: Facilitate a Project Team Approval meeting to review the project program concepts, which includes the architectural program, design goals, project budget and cost models, and project summary schedule. 1.3.5 Project Program Guide (PPG): Assist the Architect with the final preparation of the Project Program Guide (PPG). This guide based on the Project Team's agreed upon concepts, which includes the architectural program, design goals, project budget and cost models, and project summary schedule, and becomes the baseline control document. 2. DESIGN PHASE (Criteria Design, Detailed Design, Guaranteed Maximum Price) 2.1 General Requirements 2.1.1 Management and Leadership: Provide Project Team leadership to coordinate, facilitate, and manage the Team's endeavors to deliver the Design Phase consistent with the Project goals. Assist with critical decision -making for the Project including decisions pertaining to the overall project approach. Provide Project Management staff to deliver these services to support the assignment as defined by the PPG. 2.1.2 Design Phase Duration: Design Phase services are for a period of approximately 40 weeks. These services may commence upon preliminary approval of the baseline control document goals. 2.1.3 Special Meetings: Attend City Council, Historic Preservation Commission, and Planning & Zoning meetings that have project issues on the agenda. The Special Meeting Allowance anticipates a total of five meetings during this phase. 2.1.4 Management Team Meetings: Participate in bi-monthly telephone conferences with the Owner, Architect, and Contractor representatives to discuss the overall progress of the project. Maintain Project Status Report including action items for follow up. 2.1.5 Progress Payments: Review progress payment requests from the Architect and Contractor and prepare recommendation of approval. 2.1.6 Schedule and Cost Report Updates: With input from the Architect and Contractor, prepare and distribute a summary project schedule and cost report consistent with the preliminary schedule and budget established during the Pre -Design phase. Provide updates at major milestones and as significant changes occur. The schedule will identify, coordinate, and record the activities of the Project Team and for the Project Team to use as a tool for managing to schedule objectives. Wheeler Opera House 21"Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 3 of 6 2.2 Criteria Design 2.2.1 Progress Work Sessions: Conduct structured work sessions with the Project Team to review and validate information, present conceptual ideas, discuss alternatives, resolve issues and schedule assignments to move the project forward. Prepare and distribute meeting notes. The Project Team anticipates that these sessions will occur every 4 to 6 weeks. 2.2.2 Criteria Design Review: Facilitate a Project Team review of the 100% Criteria Design documents to confirm conformance with the baseline control document (PPG). This review concentrates on determining if there are significant deficiencies and missing elements in the design without assuming the design and construction responsibility or liability of the Architect and Contractor for final Project. A design review log will be established and maintained for each phase of the project to keep track of the comments that are generated by the Project Team and other stakeholders such as technical staff. These comments will be tracked through to completion as the project progresses. 2.2.3 Cost Estimating: Facilitate development of construction cost estimate for the 100% Criteria Design documents by the Contractor to validate projected costs to verify conformance with the baseline control document (PPG). 2.2.4 Estimate Reconciliation: Facilitate reconciliation of 100% Criteria Design construction cost estimate between the Contractor's estimate and the Architect's evaluation of this estimate. 2.2.5 Value Engineering: Lead a structured Value Engineering (VE) session, attended by Project Team participants to review the reconciled estimate, and to identify, evaluate and recommend alternative concepts. The process correlates the estimate to the facility functions, identifies creative options, analyzes these options relative to the program objectives, and evaluates systems, components, and details with respect to capital and operating costs. Prepare an itemized recap of prioritized VE proposals with estimated costs. 2.2.6 Schedule Analysis: Perform a schedule evaluation with assistance from Contractor and Architect to validate project delivery dates. This analysis includes investigation into whether milestone completion dates for construction are feasible. Identify long lead items specified and advise of strategies and courses of action to mitigate delays. Update the summary Project schedule accordingly 2.2.7 Milestone Approvals: Facilitate a Project Team Approval meeting to review the reconciled estimate, discuss priorities and validate project scope, delivery method, schedule and budget. 2.2.8 Milestone Report: Prepare and distribute a bound Criteria Design Report. This document summarizes the status of the scope, budget and schedule and becomes the updated baseline control document for the project. 2.3 Detailed Design 2.3.1 Progress Work Sessions: Conduct structured work sessions with the Project Team to review design wheeler Opera House 21 ' Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 4 of 6 progress, discuss alternatives, resolve issues, and schedule assignments to move the project forward. Prepare and distribute meeting notes. The Project Team anticipates that these sessions will occur every 4 to 6 weeks. 2.3.2 Detailed Design Review: Facilitate a Project Team review of the 100% Detailed Design documents to confirm conformance with the updated baseline control document and to ensure that comments made during the previous review have been addressed. This review concentrates on determining if there are significant deficiencies and missing elements in the design without assuming the design and construction responsibility or liability of the Architect and Contractor for final Project. A design review log will be established and maintained for each phase of the project to keep track of the comments that are generated by the Project Team and other stakeholders such as technical staff. These comments will be tracked through to completion as the project progresses. 2.3.3 Cost Estimating: Facilitate development of construction cost estimate for the 100% Detailed Design documents by the Contractor in conformance with the baseline control document (PPG). 2.3.4 Estimate Reconciliation: Facilitate reconciliation of 100% Detailed Design construction cost estimate between the Contractor's estimate and the Architect's evaluation of this estimate. 2.3.5 Value Engineering: Lead a structured Value Engineering (VE) session, attended by Project Team participants to review the reconciled estimate, and to identify, evaluate and recommend alternative concepts. The process correlates the estimate to the facility functions, identifies creative options, analyzes these options relative to the program objectives, and evaluates systems, components, and details with respect to capital and operating costs. Prepare an itemized recap of prioritized VE proposals with estimated costs. 2.3.6 Schedule Analysis: Perform a schedule evaluation with assistance from Contractor and Architect to validate project delivery dates. This analysis includes investigation into whether milestone completion dates for construction are feasible. Identify long lead items specified and advise of strategies and courses of action to mitigate delays. Update the summary Project schedule accordingly. 2.3.7 Milestone Approvals: Facilitate a Project Team Approval meeting to review the reconciled estimate, discuss priorities and validate project scope, delivery method, schedule and budget. 2.3.8 Milestone Report: Prepare and distribute a bound Detailed Design Report. This document summarizes the status of the scope, budget and schedule and becomes the updated baseline control document for the project. 2.4 Guaranteed Maximum Price (GMP) 2.4.1 Guaranteed Maximum Price (GMP) Proposal(s) Review and Approval: Review the Contractor's GMP(s) and any associated Subcontractor Proposals to facilitate delivery of the Project. This proposal will consist of the Scope of Work, Summary of GMP, Schedule of Values, List of Drawings and Specifications, List of Clarifications and Assumptions, Project Schedule, and Construction wheeler Opera House 2V Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 5 of 6 Management Plan prepared and submitted by the Contractor. The review may include suggestions and recommendations relative to the GMP approval. The Contractor will furnish copies of all documentation including any Subcontractor Proposals and documentation necessary to evaluate the GMP 2.4.2 Subcontractor Outreach Presentation: Attend and participate in a Subcontractor Outreach Presentation to address Project specifics. This presentation performed by the Contractor will convey the Project goals and promote interest in the construction work. The Contractor will prepare the agenda and presentation, provide notification, document discussions, and perform follow-up actions 2.4.3 Subcontractor Pre -Bid Conferences: Attend and participate in Subcontractor Pre -Bid Conferences and offer suggestions and recommendations to facilitate the delivery of the Project. These conferences chaired by the Contractor will convey the Project goals, selection process, lines of communication and approach to bid proposal submission for the Project. The Contractor will prepare the agenda and document the meeting discussions, follow-up actions, responsible team member and agreed upon timelines. 2.4.4 Pre -Award Conference: Assist the Owner with a Pre -Award Conference with the Contractor and other Project Team members to facilitate the award of construction contracts and commencement of construction. This conference provides a review and discussion of the proposed Subcontractors, Contractor's self -performed work, Contractor's proposed Contract Price, contingencies, date of construction commencement, and scheduling of the Pre -Construction Conference. Offer suggestions and recommendations to promote the Project delivery. The Owner will prepare the agenda while the Contractor will document the conference discussions, follow-up actions, responsible team member and agreed upon timelines. END OF DOCUMENT Wheeler Opera House 21° Century Master Plan Pfocus LLC Scope of Services 31 August 2009 Page 6 of 6 EXHIBIT `B" - HOURLY RATES PROGRAM MANAGER CITY OF ASPEN WHEELER OPERA HOUSE 21ST CENTURY MASTER PLAN This is an exhibit attached to, made a part of and incorporated by reference in the Agreement between City of Aspen ("Owner") and Pfocus L.L.C. ("Program Manager"). Additional Services and Special Meeting Allowance: The Owner shall compensate the Program Manager on an hourly basis for Additional Services and Special Meeting Allowances in accordance with the rate schedule as follows: Title Hourly Rate Project Director $ 150.00 Project Manager $ 135.00 Project Engineer $ 88.00 Project Coordinator $ 65.00 Administrative Assistant $ 48.00 lofl City of Aspen Wheeler Opera House 21s` Century Master Plan `alb O CERTIFICATE OF LIABILITY INSURANCE 8/25/2o 0 PRODUCER (480) 969-2291 FAX: (480) 833-4833 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Passey-Bond Co., Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 28 North Center Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. O. Box 819 1 Mesa AZ 85211 J INSURERS AFFORDING COVERAGE NAIC#__ INSURED INSURERA,C N A Insurance/Schinnerer PFocus LLC INSURER B. Continental Casualty/Schirmer 1425 N 1st Street IwsuRER c. _ Suite 100 INSURER D: Phoenix AZ 85004 INSURER E. COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OFSUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. iNSR' OD' POLICY EFFECTIVE POLICY EXPIRATION TYPE OF INSURANCE POLICY NUMBER LIMITS GENERAL LIABILITY EACH OCCURRENCE _$ 1 ,000, 000 I� X COMMERCIAL GENERAL LIABILITY _ DAMAGE TO RENTED PREMISES (Ea oxurrence) $ 100,000 A '.__i._ CLAIMS MADE'. X I OCCUR C4014293667 I7/8/2009 7/8/2010 MED EXP(My one person) __$ 5,000 PERSONAL S ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENII AGGREGATE LIMIT APPLIES PER: ., �ii PRODUCTS - COMPIOP AGG.$ 2,000,000 I PRO- POLICY X LOG AUTOMOBILE LIABILITY COMBINED SINGLE LIMB 1, 000,000 ANY AUTO (Ea accident) '.$ B ALL OWNED AUTOS 2097380366 I7/8/2009 7/8/2010 BODILY INJURY SCHEDULED AUTOS (Per person) $ X HIREDAUTOS ELY INJU RY $ BODILY INJURY X NON -OWNED AUTOS . (Per PROPERTY DAMAGE $ I (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA A00 $ AUTO ONLY: AGO $ EXCESS I UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR 171 CLAIMS MADE 'L AGGREGATE $ $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION WC STATU- OTH- 'TORY LIMITS— ER AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNERIEXECUTIVE E.L. EACH ACCIDENT $ OFFICERUMEMBER EXCLUDED? ❑ i (ManEabry In NN) E.L. DISEASE - EA EMPLOYEE $ 'If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE -POLICY LIMIT $ B OTHERprofessional MCH276188077 7/8/2009 7/8/2010 'i Per Claim 1,000,000 Liability (Aggregate 2,000,000 15,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLESI EXCLUSIONS ADDED BY ENDORSEMENTI SPECIAL PROVISIONS Project: Wheeler Opera House 21st Century Master Plan, Aspen, CO. Additional Insureds included on a Primary and Noncontributory basis per attached blanket form G17957G. Waiver of Subrogation applies per attached blanket forms CG2404 and G56015B. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OFTHEABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION The City of Aspen DATE THEREOF, THE ISSUING INSURER WILL 0,WW4MIIUEdL 30 DAYS WRITTEN 130 South Galena Street NONCE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, X9W)@(t "X( Aspen, CO 81611 AfDC�Wk A'61fdFXEl4 AUTHORREDREP Ryan M Passeyl sey/PEGGEGGY T®J ACORD 25 (2009/01) ©1988-2009 ACORD CORPORATION. All rights reserved. INS025 (2009ol) The ACORD name and logo are registered marks of ACORD G-17957-G (Ed. 01/01) IMPORTANT: THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT. SEE PARAGRAPH C.1.OF THIS ENDORSEMENT FOR THESE DUTIES. ALSO, THIS ENDORSEMENT' CHANGES THE CONTRACTUAL LIABILITY COVERAGE WITH RESPECTS TO THE `BODILY INJURY" OR "PROPERTY, DAMAGE" ARISING OUT OF THE "PRODUCTS-COMPLETEDOPERATIONS HAZARD". SEE PARAGRAPH 13.3. OF THIS ENDORSEMENT FOR THIS COVERAGE CHANGE. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CONTRACTOR'S SCHEDULED AND BLANKET ADDITIONAL INSURED ENDORSEMENT WITH LIMITED PRODUCTS -COMPLETED OPERATIONS COVERAGE This endorsement modifies. Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Name of Person or Organ: SCHEDULE Designated Project: (Coverage under this endorsement Is not affected by an erdry or lack of entry In the Schedule above.) A. WHO 1S AN INSURED (Section In. is amended to 2. The Limits of Insurance applicable to the include as an insured any person or organization, additional insured are those specified in the including any person or organization shown in the written contract or written agreement or in the schedule above, (called additional Insured) whom you Declarations of this policy, whichever is less. are required to add as an additional insured on this These Limits of Insurance are inclusive of, and not policy under a written contract or written agreement; in addition to, the Limits of Insurance shown in the but the written contract or written agreement must be: Declarations. 1. Currently in effect or becoming effective during the term of this policy; and 2. Executed prior to the "bodiy injury," "property c damage," or "personal and advertising injury'. SHER B. The insurance provided to the additional insured is =_ limited as follows: 1. That person or organization is an additional insured solely for liability due to your negligence HIS specifically resulting from 'your worm' for the additional insured which Is the subject of the written contract or written agreement. No coverage applies to liability resulting from the sole negligence of the additional insured. 3. The coverage provided to the additional insured by this endorsement and paragraph I. of the definition of "insured contract" under DEFINITIONS (Section V) do not apply to "bodly injury" or "property damage" arising out of the "products -completed operations hazard" unless required by the written contract or written agreement. When coverage does apply to "bodily Injury" or "property damage" arising out of the "products -completed operations hazard" such coverage will not apply beyond: a The period of time required by the written contract or written agreement; or G-17957-G Page 1 of 2 (Ed. 01/01) b. 5 years from the completion of "your work" on the project which is the subject of the written contract or written agreement, whichever is less. 4. The insurance provided to the additional insured does not apply to "bodily Injury," "property damage," or "personal and advertising injury" arising out of an architect's, engineers, or surveyor's rendering of or failure to render any professional services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and b. Supervisory, or inspection activities performed as part of any related architectural or engineering activities. C. As respects the coverage provided under this endorsement, SEC71ON IV — COMMERCIAL GENERAL LIABILITY CONDITIONS are amended as follows: 1. The following is.added to the Duties In The Event of Occurrence, Offense, Claim or Suit Condition: e. An additional insured under this endorsement will as soon as practicable: G-17957-G (Ed. 01/01) G-17957-G (Ed. 01/01) (1) Give written notice of an occurrence or an offense to us which may result in a claim or "suit" under this insurance; (2) Tender the defense and indemnity of any claim or "suit° to any other Insurer which also has insurance for a loss we cover under this Coverage Part; and (3) Agree to make available any other insurance which the additional insured has for a loss we cover under this Coverage Part. f. We have no duty to defend or Indemnity an additional insured under this endorsement until we receive written notice of a claim or "suit" from the additional insured. 2. Paragraph 4.b. of the Other insurance Condition is deleted and replaced with the following: 4. Odw Insurance b. Excess Insurance This insurance is excess over any other insurance naming the additional insured as an insured whether primary, excess, contingent or on any other basis unless a written contract or written agreement specifically requires that this insurance be either primary or primary and noncontributing. Page 2 of 2 am POLICY NUMBER: COMMERCIAL -GENERAL LIABILITY CO 24 04 05 00 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTSfCOMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Neese Of Parson Or Organhatim- Any person or organisation with whom you agree in writing to waive your right to recover against them. You must agree to The following is added to Paragraph 9. Transfer Of plights Of Recovery Against Others To Us of Seadon N—Conditions: We waive any right of recovery we may have against the person or organization shown In the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or 'your work' done under a contract with that person or organization and included In the 'products -completed operations hazard' This waiver applies only to the person or organtratfon shown In the Schedule above. CG 24 0405 09 Copyright, Insurance Services Ofllos, Inc., 2008 Page I of I POLICY NUMBER INSURED MANE AND ADDRESS C 4014293667 PFOCUS, LLC 1425 N 1ST STREET, SUITE 100 POLICY CRJLWRS SCREDULR C09 4-1093 This Change Endorsement changes the Policy. Please read it carefully. This Chsage Endorsement is a Part of your Policy and takes effect on the effective date of your Policy, unless another effective date is shown. CG 24 04 10 93 SCHEDULE Name of Person or Organization: Any person or organization with whom you have agreed in writing in a contract or agreement to waive any right of recovery against such person or organization, but only if the contract or agreement: 1. Is in effect or becomes effective during the term of this policy; and 2. Was executed prior to loss. a� m oh.k�uf VABWd G-56015-H (ED. 11/91) V SCFArizona At work for you Certificate Mailed To: THE CITY OF ASPEN 130 SOUTH GALENA STREET ASPEN CO 81611 Proof of Coverage Description of Operations Certificate of Insurance Name of Insured: Pfocus LLC 1425 N 1st St Ste 100 Phoenix AZ 85004 Date Issued: 08/31/2009 Certificate Number: 16 Policy Number: 500596 Origin Date: 07/22/2006 Expiration Date: 07/01/2010 Liability Limits: 500/500/500 (000 Omitted) CLERICAL OFFICE EMPLOYEES-N.O.C., CONTRACTOR - PROJECT MANAGER, CONSTRUCTION EXECUTIVE, CONSTRUCTION MANAGER OR CONSTRUCTION SUPERINTENDENT @ Wheeler Opera House 21st Century Master Plan -- 320 E Hyman Ave, Aspen CO 81611 Job Number: Location: Will be renewed for the next policy period unless we are otherwise directed by our policyholder. Coverage under this policy applies to Arizona hired employees only. It is agreed that waiver of subrogation is effective only as respects to the above Certificate Holder for the project described herein. This agreement shall not operate directly or indirectly to benefit any other person or organization. Should the above policy be canceled by the SCF ARIZONA before the expiration date thereof, the SCF ARIZONA will endeavor to mail 30 days written notice to the above named Certificate Holder, but failure to mail such notice shall impose no obligation or liability of any kind upon the SCF ARIZONA. This Certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policy listed hereon. This is to certify a workers' compensation policy has been issued to the insured listed hereon and is in force for the period referenced. Certificate Issued To: The City of Aspen 130 South Galena Street Aspen CO 81611 Authorized Representative 61-810w M0/206 "Our analysis identified no significant deficiencies in project oversight or delivery; nor did A&M find any intentional misrepresentation of costs.. . " "While we do not believe our recommendations would have had a material impact on the overall cost of Burlingame Ranch Phase 1, they may have mitigated project related miscommunications and improved overall stakeholder understanding of the broader Burlingame development." Business Process Improvement • Establish Development function as a stand alone department • Redeploy existing experienced asset managers to oversee Development function _—� • Leverage 3rd Party service providers such as construction Program Managers to augment existing staff and facilitate real estate development • Establish standardized policies, procedures, tools, and templates • Select / Implement construction management technology and reporting tools • Leverage technology to create life -to -date / year -over -year reporting of construction cost • Develop a clear and comprehensive communication plan GMP Contract Benchmark • Aggregate major clauses, terms and conditions • Create detailed progress reporting requirements including content, time, frequency and location of status meetings • Establish specific contractor accountability dates and milestones • Require owner approval for replacement of key resources • GMP / Developer Model accomplished City's objectives - Limited number of change orders and cost variances were minimal - With the exception of owner directed changes and unforeseen conditions, change orders appear to be within a tolerable range - City shifted risk of errors and omissions to Shaw construction • Moving forward A&M recommends Construction Manager as Agent Model. Advantages include - Improved Oversight & Contractor Accountability - City Retains Design Rights - Reduced Risk & Cost - Improved Communication Burlingame Ranch Brochure • Brochure produced under the direction of former Assistant City Manager and was intended to communicate the cost of the Shaw / Poss / DHM scope of work only (design and construction) • Brochure data was reviewed but lacked rigorous scrutiny that may have revealed errors or omissions in the data • No evidence of intentional misrepresentation by current or former City of Aspen employees McMahan and Associates, I.I.c. Certified Public Accountants and Consultants Web Site: www.mcmahancpa.com Suite 222/Avon Center Telephone: (970) 845-8800 100 West Beaver Creek Blvd. Facsimile: (970) 845-0851 P.O. Box 5850 Avon, CO 81620 E-mail: mcmahan@mcmahancpa.com RESULTS OF INDEPENDENT ACCOUNTANT'S REPORT ON APPLYING AGREED -UPON PROCEDURES PROCEDURE RESULTS: 1) Verify Burlingame Ranch Phase I cost and revenue numbers as prepared by the City of Aspen on their Burlingame Ranch Project Reconciliation prepared May 13, 2008. • The Burlingame cost and revenue numbers as prepared by the City of Aspen are accurate and can be relied upon for project analysis and decision making. 2) Trace a sample of payments to review payments made to the general contractor (Shaw Construction). • The project costs were properly documented, reviewed, and approved by City staff and appropriately relate to the Burlingame project's construction contract. 3) Interview staff and provide recommendations for improvements to the City's internal construction management process. • Improvements were recommended in the City's construction management process that included: i) Adopt a more formalized process for preparing voter information in anticipation of future ballot questions. ii) Utilize integrated project management software. iii) Create a construction management team for all projects exceeding a specified amount. iv) Specify a required construction management structure based upon the anticipated scope of a project. Construction Experts Group (CEG) Final Recommendations December 11, 2008 1) It is recommended that for future phases of development at Burlingame Ranch, the maximum achievable density of 293 units (based on the conceptual unit and building designs developed by the CEG) be pursued for the reason of the land savings alone. Savings is estimated to be around $9MM in land savings be adding 57 units to Burlingame land rather than elsewhere. 2) In the event that the 293 unit plan is voted down and the 236 plan must go forward, it is recommended that 236 units be achieved by using the design and construction principles that were the basis of the creation of the 293 unit plan and perhaps by strategically removing buildings from the 293 unit plan to leave open space so that future buildings could be constructed there at a later date. 3) The use of modular, factory -built housing is recommended, but not mandatory, to achieve cost efficiencies as well as to speed construction of affordable housing. 4) It is recommended that unit sizes be standardized to allow for cost efficiencies that can be achieved through unit standardization combined with modular construction. This will also allow for units to be more easily converted from a higher category to a lower category (or vice -versa) in the future in the event that conditions change. 5) It is recommended that the APCHA guidelines be reconsidered to take into consideration unit size standardization. - -� 6) The City should seek to hire a firm or individual to act as a Development Management Consultant to provide a broad spectrum of management and oversight for the design and development of Burlingame Phases 2&3. Services provided should include project accounting, budgeting, oversight, design development management, construction management, cost management, maintenance issues and more. 7) The City should seek to hire firms or individuals who can create comparable estimates from conceptual plans. Comparable estimates should be created from the conceptual plans that exist in order to measure the possible level of savings that could be achieved with the conceptual increased density plan that the CEG has created. These comparable estimates can also be used as checks against future bids for developing the project. 8) The City should pursue, with the assistance of the Development Management Consultant, an Integrated Project Development Team (IPD) including Design services, Construction Management -Constructor (CMc at Risk) services, Commissioning Service Provider, and Internal Stakeholders. The early formation of the IPD provides an open and collaborative process involving input from all parties — designers understand the ramifications of decisions when they are made, decisions are not made solely on a first -cost basis, and time value design (estimated budgeting) allows for cost feedback and early total project cost commitments. The "at risk" component of the CMc at Risk allows the Development Management Consultant and staff to recommend retaining those services through construction or seek competitive bid proposals. Retention of the services from the CMc at Risk is dependent on a verification of the bid against reliable estimates. Staff Report on the Work of the CEG 12/12/2008 Page 30 of 46 TO: FROM: THRU: DATE OF MEMO: MEETING DATE: MEMORANDUM Mayor and City Council Andy Rossello, Utilities Engineer Phil Overeynder, Utilities Director September 18, 2009 September 28, 2009 RE: Approval of material purchases necessary for the construction and installation of the electric feed lines from KVA Supply, Team Linx, and Western United Electric, for the Golf Course East Distribution System Project, ARC Distribution Project, Castle Creek Energy Center and the Water Plant Feeder Project all as part of the City's 25kV overall Electric Feed Line (Express Feeder) project. REQUEST OF COUNCIL: Staff recommends contract awards of, $64,799.50 to KVA Supply, $30,450 to Team Linx, and $11,827.40 to Western United Electric, for small materials necessary for the construction and installation of the Electric Feed Line Project (Aspen Express Feeder). The Express Feeder will provide a direct connection of several City -owned facilities (presently served directly by Holy Cross Energy) to the Aspen Municipal Electric system, as well as making provisions for connecting the proposed Castle Creek Energy Center. In addition to reducing energy costs for City facilities, the Express Feeder, when completed, will provide a more reliable source of electric power to the Aspen Municipal Electric System. When combined with the existing Puppy Smith 25kV Feeder, the Express Feeder will also reduce our reliance on facilities that are owned by Holy Cross Energy (HCE). PREVIOUS COUNCIL ACTION: Council has already approved the purchase of large materials for this job i.e. Transformers, Switch Gears, Electrical Vaults, and Cable (Resolutions #61, 62, 63, &71). It is important to pass this portion so that we may install already purchased components. BACKGROUND: Switching from HCE electric power facilities to municipal electric facilities has three main benefits. Greenhouse gas emissions attributable to energy use by City facilities will be substantially reduced. City facilities will also have direct access to lower cost and renewable energy sources. One other benefit to making this switch will, of course, be more flexibility in serving the City of Aspen's electrical needs. This portion of the project is to purchase the final "small" materials necessary for the installation of the Express Feeder. Page 1 of 3 DISCUSSION: The present phase of the Express Feeder project encompasses the following: • Extension of the power and communication conduit/vault system that was installed with the Water Reuse Line and the Maroon Creek Bridge upgrade. The existing conduit system runs from the Burlingame Subdivision to the Aspen Municipal Golf Course facility near Cemetery Lane and Highway 82. The power and communication conduit/vault system will be extended as follows: o From the Golf Course east to the vicinity of the proposed Castle Creek Energy Center o From the Golf Course south and west to intercept existing conduits running to the Aspen Recreation Center o From the vicinity of the new Castle Creek Energy Center to the Water Treatment Plant o From the vicinity of the proposed Castle Creek Energy Center to connect to the Aspen Municipal Electric System at 8th and Francis Street ■ Installation of 25kV power cable and fiber optic communication cable in the new and existing conduit/vault systems. ■ Installation and connection of electrical switchgear at critical junction points on the new sections of the electric distribution system. The installation of the new system will be integrated with the Parks Department modifications on the Bike Trail south of Highway 82 and west of Castle Creek. It will also include the installation of the piping for the drain from the retention pond at the Water Plant. The installation of this equipment will enable the Aspen Municipal Electric System to directly feed the following City of Aspen loads: Water Plant, Aspen Recreation Center, Burlingame Affordable Housing, Streets Shop, and Aspen Municipal Golf Course. FINANCIALBUDGET IMPACTS: The costs of materials necessary for the installation of this project are $64,799.50 to KVA Supply, $30,450 to Team Linx, and $11,827.40 to Western United Electric. The initial budgeted amount for these materials was $147,000 and this bid is within those constraints. The overall budget for the Aspen Express Feeder projects was $2.02 million. With engineering design completed and large materials purchased, these materials are within the budget for this project. The overall project remains on budget. The phases of the Aspen Express Feeder as discussed in the above section encompass four projects. These four projects are individually on budget, and the expenses from all four phases of the Aspen Express Feeder project will be paid back via savings incurred from lower charges from HCE for electric power, essentially a savings of over $100,000 per year, for the entirety of the project. This will be accomplished by purchasing power supplied to ourselves, at a wholesale rate, rather than continuing to purchase retail power from HCE. This material will be used with other elements of the "Express Feeder Circuit' and is within the 2009/2010 Asset Management Program budget for these projects. It also will mean the City facilities will be served by the City of Aspen Electric which will mean lower electrical costs due to our electric rates being lower. It also will allow us the potential to serve other customers that are presently being served by HCE when our franchise agreement is over in 14 years. Page 2 of 3 ENVIRONMENTAL IMPACTS: The net reduction in carbon dioxide emissions will be approximately 1125 tons/year for the combined elements of the Express Feeder circuit due to the increase in renewable energy available to customers on the City municipal system. A direct comparison of CO2 levels is: 0.53 lbs co2/kwh for the City vs. 1.78 lbs co2/kwh for HCE. RECOMMENDED ACTION: We request the council approve the expenditure of $64,799.50 to KVA Supply, $30,450 to Team Linx, and $11,827.40 to Western United Electric, for the purchase of electric vaults to enable construction of the next phase of the Express Feeder project. ALTERNATIVES: The alternatives would be for the City's loads to continue being served by Holy Cross Electric Association, and to remain limited to one primary feeder serving the City Municipal Electric System. This alternative would also result in the continued production of elevated greenhouse gases as shown in the above `Environmental Impacts' paragraph. PROPOSED MOTION: I move to approve Resolution # % y ATTACHMENTS: A. Map E-1, City of Aspen Electrical Distribution Projects. B.Proposal/Bid Page 3 of 3 RESOLUTION # 7 y (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND KVA SUPPLY, TEAM LINX, AND WESTERN UNITED ELECTRIC SETTING FORTH THE TERMS AND CONDITIONS REGARDING MATIERALS FOR THE ELECTRIC FEED LINE PROJECT 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 KVA Supply, Team Linx, and Western United Electric, 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 KVA Supply, Team Linx, and Western United Electric regarding materials for the electric feed line project 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: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 28, 2009. Kathryn S. Koch, City Clerk SUPPLY PROCUREMENT AGREEMENT THIS AGREEMENT, made and entered into, this 28th day of September, 2009 between the City of Aspen, Colorado, herein after referred to as the "City" and KVA Supply Company hereinafter referred to as the "Vendor". WITNESSETH, that whereas the City wishes to purchase a Materials for the Express Feeder Project hereinafter called the UNIT(S) being more fully described and attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the Contract Documents and any associated Specifications, and Vendor wishes to sell said UNIT to the City as specified in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth agree as follows: 1. Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Document and more specifically in Vendor's Bid for the sum of Sixty Four Thousand Seven Hundred Ninety Nine Dollars and Fifty Cents ($64,799.50). 2. Delive . (FOB 500 DOOLITTLE LANE, ASPEN, CO) Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. Per manufacturer's warranty. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties, This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the 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. 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. 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. 10. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11. Certification Regarding Debarment Suspension Ineligibility, and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees Gratuities Kickbacks and Conflicts of Interest. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to; 1. Cancel this Purchase Agreement without any liability by the City, 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts, 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor: and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability- Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non -Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17, Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 1B.Authcrized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. M ATTEST: City Clerk FOR THE CITY OF ASPEN: City Manager VENDOR: KVA Supply Company By: Title G:\ja h n\a g r\su pp I,v_pr oc KVA Supply Company 750 KCMIL SPLICES 750KCMIL T-BODY 600A ELBOW W/ TEST PIT 500 KCMIL SPLICES 500 KCMILI -BODY 600A ELBOW W/TEST PIT 1/0 ZSKV LOAD BREAK ELBOW 200A 25KV FEED THROUGH INSERT 200A 6" PVC SCH 40 3" PVC SCH 40 2" PVC SCH 40 #4 SOLID CU GROUND WIRE PVC PIPE CEMENT Exhibit A QTY Unit Cost Cost 108 $131.00 $14,148.00 7.5 $129.00 $1,935.00 18 $129.00 $2,322.00 63 $107.00 $6,741.00 46 $49.00 $2,254.00 4 $186.00 $744.00 20000 $1.65 $33,000.00 600 $6.63 $379.00 9000 $0.32 $2,980.00 800 $0.36 $288.00 6 $18.25 _ $109.50 $64,799.50 SUPPLY PROCUREMENT AGREEMENT THIS AGREEMENT, made and entered into, this 28th day of September 2009 between the City of Aspen, Colorado, herein after referred to as the "City" and TEAM LINX hereinafter referred to as the "Vendor". WITNESSETH, that whereas the City wishes to purchase Materials for the Express Feeder Project hereinafter called the UNIT(S) being more fully described and attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the Contract Documents and any associated Specifications, and Vendor wishes to sell said UNIT to the City as specified in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth agree as follows: 1. Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Document and more specifically in Vendor's Bid for the sum of THIRTY THOUSAND FOUR HUNDRED FIFTY DOLLARS ($30,450.00). 2. Delivery. (FOB 500 DOOLITTLE LANE, ASPEN, CO) 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. Per manufacturer. 5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the 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. 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. 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. 10. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11.Certification Regarding Debarment Suspension Ineligibility, and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees Gratuities Kickbacks and Conflicts of Interest. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non -Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17.Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18.Authorized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. By: ATTEST: City Clerk VENDOR: FOR THE CITY OF ASPEN: City Manager TEAM LINX By: � v mn c c G:\john\agr\supply—proc PROJECT NO. BID DATE: BID PROPOSAL FORM 2009-071 August 31, 2009 PROJECT: Materials for Electric Express Feeder Projects PROPOSAL SUBMITTED BY: Team LINX VENDORS' PROPOSAL TO: The Governing Body of the City of Aspen, Colorado The undersigned responsible bidder declares and stipulates that this proposal is made in good faith, without collusion or connection with any other person or persons bidding for the same work, and that it is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and request for bid, all the requirements of the bid documents including the plans and specifications for this bid, all of which have been read and examined prior to signature. The bidder agrees to keep this bid open for Sixty (60) consecutive calendar days from the date of bid opening. The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the City, to waive any informalities or to reject any or all bids. Materials Description and Quantity Description Quantity Cost Per Unit Total Cost 24 Strand fiber optic cable 27,000 feet $0.37 $9,990.00 Commscope- D-024-LN-SW-FZZNS--OSP 24 Strand Single Mode Dielectric Cable Maxcell inner duct 15,500 feet $1.32 $20,460.00 Maxcell- 2" 2 Cell Innerduct TOTAL BID IN NIIMBERS:$30 450 00 FOB Aspen (tax Exempt). Total Bid in Words: Thirty Thousand Four Hundred Fifty Dollars and No Cents. FOB Aspen, Tax Exempt. I acknowledge that in submitting this bid it is understood that the right to reject any and all bids has been reserved by the owner. Authorized Officer: Ivan Grr{aumann Title: General Manager Full name signature"' — Company address: 9900 East 51st Avenue Denver, Colorado 80238 Telephone number: 30 -574 115 Fax number: 303-789-5454 Attested by: BPI-971.doc `BP1 Page 1 contractors Initials SUPPLY PROCUREMENT AGREEMENT THIS AGREEMENT, made and entered into, this 28th day of September, 2009 between the City of Aspen, Colorado, herein after referred to as the "City" and Western United hereinafter referred to as the "Vendor". WITNESSETH, that whereas the City wishes to purchase a Materials for the Express Feeder Project hereinafter called the UNIT(S) being more fully described and attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the Contract Documents and any associated Specifications, and Vendor wishes to sell said UNIT to the City as specified in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth agree as follows: 1. Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Document and more specifically in Vendor's Bid for the sum of Eleven Thousand Eight Hundred Forty Dollars and Forty Cents ($11,827.40). 2. Delivery. (FOB 500 DOOLITTLE LANE, ASPEN, CO) 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. Per manufacturer's warranty. 5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the 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. 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. 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. 10. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11.Certification Regardinc Debarment Suspension Inelioibility. and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees Gratuities Kickbacks and Conflicts o_f Interest. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13.Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non -Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17.Intearation and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18.Authorized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. By: ATTEST: Clerk FOR THE CITY OF ASPEN: City Manager VENDOR: Western United By: : Title G Ajohn\agr\supplyyroc Exhibit A Western United Description QTY Unit Cost Cost 6" RMC 200 $28.00 $5,600.00 2" RMC 100 $6.60 $660.00 6" 90 DEGREE SWEEPS RMC 6 $232.50 $1,395.00 1/0 STRANDED GROUND WIRE 300 $0.82 $246.00 3/4" GRND RODS 66 $18.50 $1,221.00 3/4" GRND ROD CLAMPS 66 $1.87 $123.42 GROUNDINGCRIMPS 200 $7.68 $1,536.00 2" END BELLS 62 $2.41 $149.42 6" END BELLS 112 $5.59 $626.08 MARKING TAPE 14000 $19.32 $270.48 $11,827.40 MEMORANDUM TO: Mayor and City Council FROM: Andy Rossello, Utilities Engineer THRU: Phil Overeynder, Utilities Director DATE OF MEMO: September 18, 2009 MEETING DATE: September 28, 2009 RE: Approval of a contract between the City of Aspen and Sturgeon Electric for the installation of materials for the Golf Course East Distribution System Project, ARC Distribution Project, Castle Creek Energy Center and the Water Plant Feeder Project as part of the City's 25kV overall Electric Feed Line (Express Feeder) project. REQUEST OF COUNCIL: Staff requests a contract award to Sturgeon Electric in the Amount of $725,490.62 for the installation of all materials, as well as the trenching, and construction activities for the Electric Feed Line (Express Feeder) projects. The Electric Feed Line encompasses parts of four projects. The Feed Line will provide a direct connection of several City owned facilities (presently served directly by Holy Cross Energy) to the Aspen Municipal Electric system, as well as making provisions for connecting the proposed Castle Creek Energy Center. In addition to reducing energy costs for City facilities, the Express Feeder, when completed, will provide a more reliable source of electric power to the Aspen Municipal Electric System. When combined with the existing Puppy Smith 25kV Feeder, the Express Feeder will also reduce our reliance on facilities that are owned by Holy Cross Energy (HCE). PREVIOUS COUNCIL ACTION: Council has already approved the purchase of large materials for this job i.e. Transformers, Switch Gears, Electrical Vaults, and Cable (Resolutions #61, 62, 63, &71). It is important to pass this portion so that we may install already purchased components. BACKGROUND: Switching from HCE electric power facilities to municipal electric facilities has three main benefits. Greenhouse gas emissions attributable to energy use by City facilities will be substantially reduced. City facilities will also have direct access to lower cost and renewable energy sources. One other benefit to making this switch will, of course, be more flexibility in serving the City of Aspen's electrical needs. This portion of the project is for the installation and construction of the Electric Feed Line, materials have been purchased, and engineering design completed for this installation. Page 1 of 3 DISCUSSION: The present phase of the Express Feeder project encompasses the following: Extension of the power and communication conduit/vault system that was installed with the Water Reuse Line and the Maroon Creek Bridge upgrade. The existing conduit system runs from the Burlingame Subdivision to the Aspen Municipal Golf Course facility near Cemetery Lane and Highway 82. The power and communication conduit/vault system will be extended as follows: o From the Golf Course east to the vicinity of the proposed Castle Creek Energy Center From the Golf Course south and west to intercept existing conduits running to the Aspen Recreation Center From the vicinity of the new Castle Creek Energy Center to the Water Treatment Plant o From the vicinity of the proposed Castle Creek Energy Center to connect to the Aspen Municipal Electric System at 8th and Francis Street ■ Installation of 25kV power cable and fiber optic communication cable in the new and existing conduit/vault systems. ■ Installation and connection of electrical switchgear at critical junction points on the new sections of the electric distribution system. The installation of the new system will be integrated with the Parks Department modifications on the Bike Trail south of Highway 82 and west of Castle Creek. It will also include the installation of the piping for the drain from the retention pond at the Water Plant. The installation of this equipment will enable the Aspen Municipal Electric System to directly feed the following City of Aspen loads: Water Plant, Aspen Recreation Center, Burlingame Affordable Housing, Streets Shop, and Aspen Municipal Golf Course. FINANCIALBUDGET IMPACTS: The cost of the installation for this project is $725,490,62. The initial budgeted amount for this labor was $760,000 and this bid is within those constraints. The overall budget for the Aspen Express Feeder projects was $2.02 million. With engineering design completed and large materials purchased, these materials are within the budget for this project. The overall project remains on budget. The phases of the Aspen Express Feeder as discussed in the above section encompass four projects. These four projects are individually on budget, and the expenses from all four phases of the Aspen Express Feeder project will be paid back via savings incurred from lower charges from HCE for electric power. The annual savings in purchased power is estimated at $100,000 per year, for the entirety of the project. This will be accomplished by purchasing power supplied to ourselves, at a wholesale rate, rather than continuing to purchase retail power from HCE. This material will be used with other elements of the 'Express Feeder Circuit' and is within the 2009/2010 Asset Management Program budget for these projects. It also will mean the City facilities will be served by the City of Aspen Electric which will mean lower electrical costs due to our electric rates being lower. It also will allow us the potential to serve other customers that are presently being served by HCE when our franchise agreement is over in 14 years. ENVIRONMENTAL IMPACTS: The net reduction in carbon dioxide emissions will be 1125 tons/year for the combined elements of the Express Feeder circuit due to the increase in Page 2 of 3 renewable energy available to customers on the City municipal system. A direct comparison of CO2 levels is: 0.53 lbs co2/kwh for the City vs. 1.78 lbs co2/kwh for HCE. RECOMMENDED ACTION: We request the council approve the expenditure of $725,490.62 for the purchase of electric vaults to enable construction of the next phase of the Express Feeder project. ALTERNATIVES: The alternatives would be for the City's loads to continue being served by Holy Cross Electric Association, and to remain limited to one primary feeder serving the City Municipal Electric System. This alternative would also result in the continued production of elevated greenhouse gases as shown in the above `Environmental Impacts' paragraph. PROPOSED MOTION: I move to approve Resolution # CITY MANAGER is - 3 ATTACHMENTS: A. Map E-1, City of Aspen Electrical Distribution Projects. B. Proposal/Bid Page 3 of 3 RESOLUTION # S (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND STURGEON ELECTRIC COMPANY INC. SETTING FORTH THE TERMS AND CONDITIONS REGARDING CITY OF ASPEN EXPRESS FEEDER CONSTRUCTION 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 Sturgeon Electric Company Inc., a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Sturgeon Electric Company Inc. regarding City of Aspen Electric Feeder Construction 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: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 28, 2009. Kathryn S. Koch, City Clerk The 811V of nspen CONTRACT FOR CONSTRUCTION BitvnmornevsOffice THIS AGREEMEN, made and entered into on SEPTEMBER 28, 2009, by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and STURGEON ELECTRIC COMPANY, INC., hereinafter called the "Contractor". WHEREAS, the City has caused to be prepared, in accordance with the law, specifications and other Contract Documents for the work herein described, and has approved and adopted said documents, and has caused to be published, in the manner and for the time required by law, an advertisement, for the project: CITY OF ASPEN EXPRESS FEEDER, and, WHEREAS, the Contractor, in response to such advertisement, or in response to direct invitation, has submitted to the City, in the manner and at the time specified, a sealed Bid in accordance with the terms of said Invitation for Bids; and, WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined, and canvassed the Bids submitted in response to the published Invitation for Bids therefore, and as a result of such canvass has determined and declared the Contractor to be the lowest responsible and responsive bidder for the said Work and has duly awarded to the Contractor a Contract For Construction therefore, for the sum or sums set forth herein; NOW, THEREFORE, in consideration of the payments and Contract for Construction herein mentioned: 1. The Contractor shall commence and complete the construction of the Work as fully described in the Contract Documents. 2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and other services necessary for the construction and completion of the Work described herein. 3. The Contractor shall commence the work required by the Contract Documents within seven (7) consecutive calendar days after the date of "Notice To Proceed" and will complete the same by the date and time indicated in the Special Conditions unless the time is extended in accordance with appropriate provisions in the Contract Documents. 4. The Contractor agrees to perform all of the Work described in the Contract Documents and comply with the terms therein for a sum not to exceed Seven Hundred Fifty Seven Thousand Five Hundred Thirty Seven Dollars and Forty Eight Cents ($757,537.48) or as shown on the BID proposal. 5. The term "Contract Documents" means and includes the documents listed in the City of Aspen General Conditions to Contracts for Construction (version GC97-2) and in the CCi-971.doc Page 1 '"cc1 Special Conditions. The Contract Documents are included herein by this reference and made a part hereof as if fully set forth here. The City shall pay to the Contractor in the manner and at such time as set forth in the General Conditions, unless modified by the Special Conditions, such amounts as required by the Documents. This Contract For Construction shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein or in the Contract Documents, this Contract For Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4-08-040. This agreement shall not be binding upon the City unless duly executed by the City Manager or the Mayor of the City of Aspen (or a duly authorized official in his/her absence) following a resolution of the Council of the City of Aspen authorizing the Mayor or City Manager (or a duly authorized official in his/her absence) to execute the same. 8. This agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Contractor respectively and their agents, representatives, employees. Successors, assigns, and legal representatives. Neither the City nor the Contractor shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of the other party. 9. This agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom the Contractor or the City may assign this Contract For Construction in accordance with the specific written consent, any rights to claim damages or to bring suit, action or other proceeding against either the City or the Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 10. No waiver of default by either party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 11. The parties agree that this Contract For Construction was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be kept exclusively in the courts of Pitkin County, Colorado. 12. In the event that legal action is necessary to enforce any of the provisions of this Contract for Construction, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 13. This Contract For Construction was reviewed and accepted through the mutual efforts of the parties hereto, and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Contract For Construction. CC1-971.doc Page 2 "CC1 14. The undersigned representative of the Contractor, as an inducement to the City to execute this Contract For Construction, represents that he/she is an authorized representative of the Contractor for the purposes of executing this Contract For Construction and that he/she has full and complete authority to enter into this Contract For Construction for the terms and conditions specified herein. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. ATTESTED BY: RECOMMENDED FOR APPROVAL: City Engineering Department ATTESTED BY: CITY OF ASPEN, COLORADO 0 APPROVED AS TO FORM: 0 City Attorney CONTRACTOR: B Robert E McDaniel Title:vice Pr ident, Distribution West Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. CCi-971.doc Page 3 "cC1 Certification and Supplemental Conditions to Contract for Services - Conformance with 68-17.5.101, et seq. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06-1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal Aliens — Public Contracts for Services." This new law prohibits all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new law also requires that all contracts for services include certain specific language as set forth in the statutes. This Certification and Supplemental Conditions has been designed to comply with the requirements of this new law. Applicability. The certification and supplemental conditions set forth herein shall be required to be executed by all persons having a public contract for services with the City of Aspen. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Contractor" means a person having a public contract for services with the City of Aspen "Public Contract for Services" means any type of agreement, regardless of what the agreement may be called, between the City of Aspen and a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. PURSUANT TO SECTION 8-17.5-101, C.R.S., et. seq.: By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. The Public Contract for Services referenced below is hereby amended to include the following terms and conditions: 1. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar Page 5 months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. 4. Contractor shall not use the Basic Pilot Program procedures to undertake pre -employment screening ofjob applicants while the Public Contract for Services is being performed. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (i) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 6. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. 7. If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S. Public Contract for Services: City of Aspen Express Feeder Contractor: Sturgeon Electric Co,, Inc. By: Robert E. McDan>41 Title: Vice Presidentr Distribution West JPW- saved: 9/4/2009-867-M:\city\cityatty\contract\forms\certification - hb-06-1343.doc M-971.doc Page "cc1 PROJECT NUMBER 2009-077 CITY OF ASPEN EXPRESS FEEDER Revised Bid September 15, 2009 Item 1: This is a labor only contract, Contractor will be paid under this schedule only. The total bid summary was calculated incorrectly in the contractor's bid. All modifications are based on unit prices furnished by the contractor. The attached spreadsheet indicates the proper required quantities as applied to the contractor's bid units. Project Bid Amount Water Plant Feeder $101,753.13 Castle Creek Energy $33,214.79 Center Aspen Recreation $230,287.67 Center Golf Course East $360,235.03 Total Labor Prices $725,490.62 The following tables are all unit quantities with descriptions of changes that are necessary for the current project requirements. These current project requirements are reflected in the 'Amendment 1' column of each table. The prices shown above are reflective of the changes made to complete this amendment. Definitions: NIA — Not Applicable Design Change — A change in the design of the project that necessitates a change in the bid -unit quantity. Take -Off Error — A bid -unit quantity error that was made by the contractor. Omission — A bid unit that was either left off of the original bid documents or had an error that required correction upon review of the contractor's bid. By Others — A bid unit that changed due to the fact that that part of the project is being completed in whole or in part by another party. Possible Adder — These numbers represent additional charges that may result from encountering certain conditions; such as very large rocks during trenching and digging. Item 2: Water Plant Feeder Unit Description of Change Bid Issue Quantity Sturgeon Bid Quantity Amendment 1 Quantity EXRC Design Change 1 0 0 U 40-6 By Others 10.1 10.1 2.48 U 40-2 By Others 4.42 4.42 0.95 UR2-S 48"&24" Design Change 0 0 1240 U 500 N/A 4.14 4.14 4.14 U 500 S N/A 33 33 33 U 500E N/A 6 6 6 U 1/0 Design Change 3 3 0.84 U 1/0 E N/A 15 15 15 UGRND Design Change 14 14 16 523 Vista N/A 1 1 1 OF N/A 5.5 5.5 5.5 UVV N/A 1 1 1 XMFR-UG Desi n Chan e 1 1 2 UN Design Change 1 1 2 URV Design Change 11 11 2 UCV Design Change 2 2 1 Item 3: Castle Creek Enersw Center Unit Description of Change Bid Issue Quantity Sturgeon Bid Quantity Amendment 1 Quantity UR2-S 48"&24" By Others 230 230 100 U 40-6 By Others 1.95 1.95 0 U 40-2 By Others 0.2 0.2 0 U 750 Design Change 0.33 0.33 0.59 U 750 S N/A 9 9 9 U 750E N/A 15 15 15 UGRND N/A 8 8 8 New XMFR N/A 3 3 3 UGRND Design Change 14 14 16 523 Vista N/A 1 1 1 Existing XMFR Design Change 1 1 0 UN N/A 1 1 1 UR-5 6 Omission 0 0 220 UR-5 2 Omission 0 0 110 URV Desi n Chan e 1 1 0 UCV By Others 1 1 0 UR2-R 48"&24" Possible Adder 1 1 0 Item 4: Aspen Recreation Center Unit Description of Change Bid Issue Quantity Sturgeon Bid Quantity Amendment 1 Quantity UR2-S 4W&24" Omission 1.98 1.98 1770 UR2-R 48"&24" Possible Adder 1 0 0 U 40-6 N/A 3.66 3.66 3.66 U 40-2 N/A 1.95 1.95 1.95 UR-24 BORE N/A 200 200 200 U 500 N/A 5.88 5.88 5.88 U 500 S N/A 30 30 30 U 500E N/A 6 6 6 U 1/0 Design Change 1 1 0.3 U 1/0 E Design Change 8 8 4 New XMFR N/A 2 2 2 UGRND N/A 10 10 10 UR-5 6 Design Change 400 400 0 UR-5 2 Design Change 200 200 0 URV N/A 2 2 2 UCV Design Change 0 1 1 EXRC Design Change 2 0 0 OF N/A 6.15 6.15 6.15 U/1 N/A 4.59 4.59 4.59 UTV Design Change 0 0 1 2 Item 5: Golf Course East Unit Description of Change Bid Issue Quantity Sturgeon Bid Quantity Amendment 1 uantity UR2-S 48"&24" Bv Others 2200 2200 1325 UR2-R 48"&24" Possible Adder 1 0 0 U 40-6 Design Change 5.3 5.3 3.11 U 40-2 Design Change 2.6 2.6 1.6 U 40-3 Design Change 0.6 0.6 0.3 UR4-a Design Change 1370 1370 1030 UR4-c Design Change 645 645 0 U 750 N/A 14.66 14.66 14.66 U 750 S N/A 108 108 108 U 750E N/A 15 15 15 U 500E Design Change 6 6 0 U 1/0 Design Change 1 6 6 U 1/0 E Design Change 10 1 4 New XMFR Take -Off Error 2 10 2 XMFR Design Change 2 2 0 -Existing UGRND Take -Off Error 36 2 . 36 422 Vista N/A 1 1 1 431 Vista N/A 1 1 1 OF N/A 14.5 14.5 14.5 U/I N/A 10.8 10.8 10.8 UR-5 6 Desi n Chan a 200 200 0 Unit Description of Change Bid Issue Quantity Sturgeon Bid Quantity Amendment 1 Quantity UR-5 2 Design Change 100 100 0 UVV N/A 2 2 2 UN Omission 12 12 2 UCV N/A 3 3 3 UVX Possible Adder 16 16 0 URV Desi n Chan e 0 0 6 UR-24 BORE Omission 0 0 152 AFFIDAVIT OF COMPLIANCE PROJECT NUMBER: 2009-077 The undersigned contractor has read a copy of the Contract Documents including the construction plans, for this project and understands and hereby affirms that he/she does not now, nor will he/she in the future, violate the provisions of said Contract Documents, so long as he/she is under the Contract to the City of Aspen for the performance of a Contract. The undersigned further acknowledges he/she understands and agrees to all terms and conditions of the Aspen Municipal Code and its being part of the Contract with the City of Aspen. Attest: Corporate Seal STATE OF COLORADO SS. COUNTY Sturgeon Electric Co., Inc. Contractor B . Before me Susan K. Bachicha —,a notary public and for Adams County, Colorado personally appeared Robert . M Dan, l known to me personally to be the person(s) whose signature(s) in my presence this 9 day of September A.D.2009. My commission expires:—='�1�q�+' ' �1 (Seal' N Notary Public B81-971.doc •BB1 CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF Colorado COUNTY OF Adams N SS. On this 9 day of September 2009, before me appeared Robert E. McDaniel , to me personally known, who, being by me first duly sworn, did say that s/he is vice President, Distribution west of Sturgeon Electric Co., Inc 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 12150 E 112th Ave., Henderson Co 80640 Address My commission expires: 4 09/11/09 ConfirmNet -> 13038537658 Pg 2/5 ODCORDN CERTIFICATE OF LIABILITY INSURANCE OALE IMM/09YTYY' 09 /11/09 veooucER 1-630-773-3800 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Arthur J. Gallagher Risk Management Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Two Pierce Place ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Itasca, IL 60143 Kate Ackert (630) 694-5167 INSURERS AFFORDING COVERAGE NAICN INSURED Sturgeon Electric Company, Inc. INSURERA. Zurich American Ins Cc (A Xv) 116535 LNSURER - - _ 24767 12150 E. 112Ch Avenue — NSURERC t- au Fire S Marine Ins Co (Aa XV)- - Henderson, CO 80640 INSUIX PD rnvvonc�c THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BYTHE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR N$RO INSRU LTR TTP OF POLICY POLICYEFFECTIVE POLICY EXPIRATION INS NGE NUMBER ATE MMNDNY DAL MMIODIYT LIMITS A GENERAL LIABILITY GLO837415414 09/30/08 09/30/09 EACH OCCURRENCE $2 000,000 COMMERCAL GENERAyL L�IABILITY GETORENTED PREMISES(Eso,. uvr I $ 100,000 'F-- CLAWSMAOE DX OCCUR 1 - -- - 1,55, MFI)EXP (Mywepersor 000 % %CII 'PERSONAL SPDvhNJURY S2,000,000 ! -- GENERALAGGREGATE I,$ 4,000,000 GEN'L ACCREGATE LIMIT APPLIES PER PRODUCTS -COMP!OPA G $4,000,000 PRO- X I 'I - POI i"F—I ECT IP.0 A AUTOM OB ILL LABILI TT 09/30/OB 09 /30/09 iBAPB37415512 X ANY AUIC CO MBINEDSINGLE LIMT 2,000,000 (Ea araticrD � $ AT I -NED AUTCS BODILY M!URv _ SCHECULEDAUTOS S HIRI I,AUI O$ BCDILV INJURY NON CANED AUTOS WaraoideFll $ X Comp Cod $100,000 X Coll Ded $100,000 PH(IPEr.tI AGE (Per.acdtt'enb S IGARAGELIABILIFY j AUTO ONLY-EAACCICENT 5 ANV AUTC � OTHE� . EA ACC ' 3 AUTO CNHNN AUTO CNLY. ACJ, 15 8 'I EXCESSUMBRELLA LIABILITY IQK01201908 09/30/08 09/30/09 EACH OCCURRENCE $ 10, 000, 000 _I OCCUR —J CLAMS MADE AGGREGATE $ 10, 000, 000 CEDUCTBI L _I S X I, RETEPJTON g 10,000 - I$ A WORKERS COMPENSATION AND WC837415312 (WI) 09/30/08 09/30/09 X WC SEATO OTH- A EMPLOYERS LIABILITY TORY LM TS ER ANY PROPRIE TOR: PARTNER; EXECUTIVE WC837415212 (A/0/S) O9/30 /08 09/30/09 EL EACH ACCIDENT I$1 000, 000 OFFL.ERNEMBEB EX✓LUDED7 FIE DCLAS1—FA FMPT OY" I$1.000 , 000 yss ,e, 6 SPEC,AI.PRCvISONS UeIoo' EL. DISEASE -POLICY LIMT I,$1,000,000 OTHER OESCRIP I ION OF OPERA I IONS! LOCATIONS!VIED ICLESIEXCLUSIONS ADDED BY ENOOHSEM ON II SPECIAL PROM SIONS Desc. of Job: - City of Aspen Express Feeder City of Aspen is Shown as an additional insured solely with respect to General Liability and Automobile Liability coverage as evidenced herein on a primary/non-contributory basis as required by written contract with respect to the work performed by the named insured. A waiver of subrogation in favor of City of Aspen is included under the General Liability and Workers Compensation coverage as evidenced herein as required by written contract. A severability of interest/cross suits liability clause is included under the General Liability coverage as evidenced herein as required by written contract. 1532 City of Aspen Attn! Rebecca Hodgson 130 S. Galena St. Aspen, CO 81611 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRAn ON DATE THLKLOF, THE ISSUING INSURER WILL ENDEAVOR 10 MAIL 30 DAYS WHII IEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO $0 SHALL IMPOSE NO OBLIGATION ON LIABILITY Of ANY WIND UPON THE INSURER, ITS AGENTS OR AUTHORIZED REPRESENTATIVE - USA 09/11/09 ConfirmNet -> 13038537658 Pg 3/5 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. 09/11/09 ConfirmNet —> 13038537B58 Pg 4/5 POLICY NUMBER: GLO837415414 COMMERCIAL GENERAL LIABILITY CG 20 10 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organ izations : Locations Of Covered Operations f1532 City of Aspen Express Feeder City of Aspen Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the persons) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury' caused, in whole or in part, by: 1. Your acts or omissions, or 2. The acts or omissions of those acting on your behalf: in the performance of your ongoing operations for the additional insured(s) at the location(s) desig- nated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equip- ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor en- gaged in performing operations for a principal as a part of the same project. CG 20 10 07 04 C ISO Properties, Inc., 2004 Page 1 of 1 0 09/11/D9 ConfirmNet —> 13038537658 Pg 5/5 POLICY NUMBER: GLO837415414 COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Or anization s : Location And Description Of Completed Opera. tions 1532 City of Aspen Express Feeder City of Aspen 130 S. Galena St, Aspen Co 81611 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work' at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products - completed operations hazard". CG 20 37 07 04 0 ISO Properties, Inc., 2004 Page 1 of 1 0 09/11/09 ConfirmNet -> 13038537658 Pg 2/2 ACORD CERTIFICATE OF PROPERTY INSURANCE °ATE(MMIDD;YYI 09 /11/09 PRODUCER 1-630773-3800 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Arthur J. Gallagher Risk Management Services, Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. two Pierce Place COMPANIES AFFORDING COVERAGE Itasca, IL 60143 COMPANY Kate Ackert (630) 694-5167 A Firemans Fund Ins Cc (A XV) INSURED COMPANY Sturgeon Electric Company, Inc. B COMPANY C 12150 E. 112th Avenue COMPANY Henderson, CO 80640 D COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPEOFINSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION COVERED PROPERTY LIMITS LTR. DATE (MMI00/TYI DATE (MMND/YYI PROPERTY BUILDING �$ 15 L CAUSES OF LOSS PERSONAL PROPERTY BASIC BUSMESS INCOME Ls-. _ CH:;AI; EXTRA EXPFNSF $� SPEC I AI DIANHET BUILDING $ EARTHQUAKE �. BLANKET PENS PROP �S S FLOCC BLANKET BLDG&PP S I A X INLAND MARINE MXI97909437 09/30/08 109/30/09 X See Below 'S 2,500,000 IS 1001000 �'. T'PF OF PCVCv X Deductible _ '.Property Floater CAUSES CF LOSS $ $ NAMED. PERILS $ X OTHER All Risk CRIME $ b 11111-CF PCA Cy $ _ BOILER K MACHINERY $ OTHER ' I $ $ 5 LOCATION OF PREMISESiDESCRIPTION OF PROPERTY SPECIAL CONDITIONS/OTHER COVERAGES Covered Property - Material. of Others in the Care, Custody and Control of the Named Insured Desc. of Jab: - City of Aspen Express Feeder CERTIFICATE HOLDER - CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE 1532 EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL City of Aspen 30_. DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Attn: Rebecca Hodgson BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 130 S. Galena St. OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Aspen, CO 81611 USA, ACORD 24 (1/95) joamancl 0 ACORD CORPORATION 1995 13001037 MEMORANDUM TO: Mayor and Council FROM: Adam Trzcinski, Engineering. THRU: Trish Aragon, P.E., City Engineer. DATE OF MEMO: September 21, 2009 MEETING DATE: September 28, 2009 RE: Power Plant Road Bridge Guard Rail Replacement Project SUMMARY: Staff recommends council approve the contract with Mueller Construction Services Inc. for the amount of $76,160.00. BACKGROUND: The Power Plant Road Bridge is functionally obsolete. This means that the bridge is structurally safe but too narrow for current traffic volumes. This rating along with the increasing growth in and around Aspen points to the need for replacement or renovation of this bridge. This includes, at a minimum, preventative maintenance to keep this bridge usable and safe for the public. The most pressing issue associated with the preventative maintenance for this bridge is the defective guard rail system currently installed. This project will involve extending the guardrails with the appropriate transitions and end treatments as well as removing the risk of supporting utility conduit (see attached photos). DISCUSSION: The Power Plant Road Bridge Guard Rail Replacement project involves the removal of the damaged and deficient guard rail system and replacing it with compliant hardware. FINANCIAL IMPLICATIONS: Sufficient funds have been allocated for this contract. Funding 2009 Power Plant Road Bridge Maintenance $230,000.00 TOTAL $230,000.00 Expenditures Professional Fees encumbered $76,160.00 Staff Administration $ 10,000.00 Contingency $ 25,000.00 TOTAL $111,160.00 �1� 6 RESOLUTION 47 (o (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND MUELLER CONSTRUCTION SETTING FORTH THE TERMS AND CONDITIONS REGARDING BRIDGE GUARD RAIL STRUCTURAL DESIGN AND REPLACEMENT ON POWER PLANT ROAD 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 Mueller Construction, 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 Mueller Construction regarding Bridge Guard Rail Structural Design and Replacement on Power Plant Road 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: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 28, 2009. Kathryn S. Koch, City Clerk 0 The oily or Aspen CONTRACT FOR CONSTRUCTION oilvAmornev-3office THIS AGREEMENT, made and entered into on SEPTEMBER 28, 2009, by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and MUELLER CONSTRUCTION SERVICES INC., hereinafter called the "Contractor". WHEREAS, the City has caused to be prepared, in accordance with the law, specifications and other Contract Documents for the work herein described, and has approved and adopted said documents, and has caused to be published, in the manner and for the time required by law, an advertisement, for the project: Bridge Guard Rail Structural Design & Replacement on Power Plant Road, and, WHEREAS, the Contractor, in response to such advertisement, or in response to direct invitation, has submitted to the City, in the manner and at the time specified, a sealed Bid in accordance with the terms of said Invitation for Bids; and, WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined, and canvassed the Bids submitted in response to the published Invitation for Bids therefore, and as a result of such canvass has determined and declared the Contractor to be the lowest responsible and responsive bidder for the said Work and has duly awarded to the Contractor a Contract For Construction therefore, for the sum or sums set forth herein; NOW, THEREFORE, in consideration of the payments and Contract for Construction herein mentioned: 1. The Contractor shall commence and complete the construction of the Work as fully described in the Contract Documents. 2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and other services necessary for the construction and completion of the Work described herein. 3. The Contractor shall commence the work required by the Contract Documents within seven (7) consecutive calendar days after the date of "Notice To Proceed" and will complete the same by the date and time indicated in the Special Conditions unless the time is extended in accordance with appropriate provisions in the Contract Documents. 4. The Contractor agrees to perform all of the Work described in the Contract Documents and comply with the terms therein for a sum not to exceed SEVENTY SIX ONE HUNDRED SIXTY ($76,160.00) DOLLARS or as shown on the BID proposal. 5. The term "Contract Documents" means and includes the documents listed in the City of Aspen General Conditions to Contracts for Construction (version GC97-2) and in the CC1-971.doc Page 1 "CC1 Special Conditions. The Contract Documents are included herein by this reference and made a part hereof as if fully set forth here. 6. The City shall pay to the Contractor in the manner and at such time as set forth in the General Conditions, unless modified by the Special Conditions, such amounts as required by the Documents. 7. This Contract For Construction shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein or in the Contract Documents, this Contract For Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4-08-040. This agreement shall not be binding upon the City unless duly executed by the City Manager or the Mayor of the City of Aspen (or a duly authorized official in his/her absence) following a resolution of the Council of the City of Aspen authorizing the Mayor or City Manager (or a duly authorized official in his/her absence) to execute the same. 8. This agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Contractor respectively and their agents, representatives, employees. Successors, assigns, and legal representatives. Neither the City nor the Contractor shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of the other party. 9. This agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom the Contractor or the City may assign this Contract For Construction in accordance with the specific written consent, any rights to claim damages or to bring suit, action or other proceeding against either the City or the Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 10. No waiver of default by either party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 11. The parties agree that this Contract For Construction was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be kept exclusively in the courts of Pitkin County, Colorado. 12. In the event that legal action is necessary to enforce any of the provisions of this Contract for Construction, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 13. This Contract For Construction was reviewed and accepted through the mutual efforts of the parties hereto, and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Contract For Construction. CC1-971.doc Page 2 14. The undersigned representative of the Contractor, as an inducement to the City to execute this Contract For Construction, represents that he/she is an authorized representative of the Contractor for the purposes of executing this Contract For Construction and that he/she has full and complete authority to enter into this Contract For Construction for the terms and conditions specified herein. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. ATTESTED BY: RECOMMENDED FOR APPROVAL: City Engineering Department ATTESTED BY:: f CITY OF ASPEN, COLORADO 0 APPROVED AS TO FORM: City Attorney CONTRACTOR: 0 Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. IAIc- Page CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF C o to re.J-o ) 1� ) SS. COUNTY OF On this day of bR-r 1 2009, before me appeared ja- , 4 a w l<;M to me personally known, who, being by me first duly sworn, did ay that s/he is 1-fe"Q U Q l e-r of —y► (Lr vi. es Snc - 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. NAWjr:"!/ �OTARV N fP !� G 0 9�. ua��C��rys otary Public J OD�f% E C;f. &le'pLwood Add res 8 �1 My commission expires: -,;/3f lab I I Certification and Supplemental Conditions to Contract for Services - Conformance with 48-17.5.101, et seq. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06-1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal Aliens — Public Contracts for Services." This new law prohibits all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new law also requires that all contracts for services include certain specific language as set forth in the statutes. This Certification and Supplemental Conditions has been designed to comply with the requirements of this new law. Applicability. The certification and supplemental conditions set forth herein shall be required to be executed by all persons having a public contract for services with the City of Aspen. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Contractor" means a person having a public contract for services with the City of Aspen. "Public Contract for Services" means any type of agreement, regardless of what the agreement may be called, between the City of Aspen and a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. PURSUANT TO SECTION 8-17.5-101, C.R.S., et. seq.: By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. The Public Contract for Services referenced below is hereby amended to include the following terms and conditions: 1. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar M-971.doc months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. 4. Contractor shall not use the Basic Pilot Program procedures to undertake pre -employment screening of job applicants while the Public Contract for Services is being performed. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (i) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 6. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. 7. If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S. Public Contract for Services: Contrac 1 'n/t«`�o tV `�`S f W__ By: Title: JPW- saved: 8/3/2006-867-M:\city\cityatty\contract\forms\certification - hb-06-1343.doc doc City of Aspen Invitation to Bid Bridge Guardrail Structural Design and Replacement for Power Plant Road SCOPE OF WORK PROJECT OBJECTIVE: To improve vehicular safety across the bridge by removing ageing guardrail components and replacing them with modern components while not compromising the structural utility of the bridge. BACKGROUND & DISCUSSION: The current guardrail configuration across the power plant road bridge is non -compliant to CDOT specifications. Additionally, significant damage to the bridge framing is expected if the guardrails are impacted. The City intends to bring the guardrail system as close to compliance with CDOT specifications as practicable without necessitating total bridge replacement. In order to achieve this goal, proposals for this project must account for the structural design of the guardrail supports and connections to the existing bridge frame. As part of the work for this project, the City will require a structural drawing stamped by a Structural Engineer licensed to practice in Colorado depicting the guardrail member sizing and spacing as well as connection details. r1wom lir 9 ABUTMENTS: 1'-II' THICK POURED -IN - PLACE CONC. WALLS ELEVATION 35'•8' STR. LENGTH BRIDGE RAILINGS: GAILY. TU' BEAM RAIL W/ ON 6k3'h'x3/16' %POSTS 1& 24'-2' O.O DECK (2/SIOE) 1 24'-4' RAIL -RAIL (2) 2'V2'o PVC UTILITY PIPES DECK lir----- .7k --•----------- ----••---- --- T' ASPHALT ON GALV. CORK MTL. DECK (J. TO ROADWAY) (2) 6Y STL. PIPES 4'# 5TL A2 N� .gra.ANt;, 6&MAJ8;:;rtOA✓ 09-104 'L uauxx,vD. 5,90p DaAwffiA6!�r A.wv'g9 5;rA0.v0V 5 Y 6oevMoo 4yrtaella!AL P, 9. 3'x'4' EDGE IE E --� GIRDERS: (EXT) (2) 04x" (INT.) (11) 515x42.9 Sl#UTILITY WRAPPED PIPE 10 SPACES 23tV TO 24' 1 IS'-64i' 6Vi' b'x2' ABUTS. A 1/ LS UTILITY PIPE1. 24' • ABUT$. 1 V3 5EGTION A B C D E F G H I J K L M POINTS WWjWALL5 IS' N THICK P)P. CONC. WALLS (LENGTH 1 ANGLE ON PLAN) O \ de Bch MAIN FACILITY g pRrvEWAY t� \C•0 VA fi EXTENSION OF BRIDGE RAIL ON (1) 6'411'x3/I6' L POST W/ FLARED END SECTION PLAN SKEW DIRECTION _ OF INVENTORY 16 POWER PLANT ROAD (91YALER STREET) T ST.dan 7/1/2008 9:25:33 AM ArrAuimwr C ALPHA E%inmint Gmup, Inc - ...........- ---- - --- J W . ._. .. W d_2•ip � .._ .._. _v _. _.. I. __ ....-.— _._...__... ..... _.. _ .._ .._.... U... .... L. .... _. .... _.. _ ... tea_ C .. .� �. a �.. < MY.-. NY �W Q. . .a _ .v .; ..._.. NW .. arm lJW Z x N�-- f � m VY ss — Q _ Ml 7 O �Z IL co 03 �... BID PROPOSAL FORM PROJECT NO. 2009-064 BID DATE: 2:00pm, August 26, 2009 PROJECT: Bridge Guard Rail Structural Design & Replacement on Power Plant Road PROPOSAL SUBMITTED BY: Mueller Construction Services, Inc. CONTRACTOR'S PROPOSAL TO: The Governing Body of the City of Aspen, Colorado The undersigned responsible bidder declares and stipulates that this proposal is made in good faith, without collusion or connection with any other person or persons bidding for the same work, and that it is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and request for bid, all the requirements of the bid documents including the plans and specifications for this bid, all of which have been read and examined prior to signature. The bidder agrees to keep this bid open for SixtV (60) consecutive calendar days from the date of bid opening. The Contractor agrees that construction shall start immediately following a mandatory pre -construction conference held by the Engineering Department, which also constitutes the Notice to Proceed. Submission of this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish construction within the time specified in the Special Conditions of this contract document. The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the City, to waive any informalities or to reject any or all bids. The City hall not pay the Contractor for defective work and/or for repairs or additional work required for successful completion of the project. All work not specifically set forth as a pay item in the bid form shall be considered a subsidiary obligation of the Contractor and all costs in connection therewith shall be included in the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the proper and success completion of the work, including furnishing all materials, equipment and tools, and performing all labor and supervision to fully complete the work to the City's satisfaction. Poor quality and workmanship shall not be paid for by the City. Such work product must be removed immediately and replaced properly at no cost to the City. All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for estimating the probable cost of work and for the purpose of comparing the bids submitted to the City. The basis of payment shall be the actual amount of materials furnished and work done. The Contractor agrees to make no claims for damages, anticipated profit, or otherwise on account of any differences between the amount of work actually performed and materials actually furnished and the estimated amoof work. ut BP1-971.doc *BPI C Page 1 IContractor's Initials The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid unit price and up to plus or minus Twenty Five (25) Percent of the total bid. I hereby acknowledge receipt of ADDENDUM(s) numbered �_ through ESTIMATED QUANTITYLIST BID ITEM DESCRIP__II 1. Material Testing LS 2. Clearing and Grubbing LS 3. Guardrail CDOT Type 3, W Beam LF 4. End Anchor Type 3K EA 5. Transition Type 3L EA 6. Bridgerail, Posts, Blocks, Rail 7. Mobilization LS 8. Traffic Control LS 9. Sewer Line Remove & Replace LS 10. Utility Relocations (Force Account Total Bid in BP1-971.doc "BPI QUANTITY 1 1 25 4 3 LF 70 1 1 1 LS 1 UNIT TOTAL FRI E COST $ zP� $ Zeco $�,600,Dd $G,50o. $Zza-00 $ /, 0A0 $DO,00 $ 3,zqiQ. $ I , 2S0,00 $ 3. 750. $411;zao $ Zs',gyo. $-/ '4ov.00 $o, $ Zc r0 $ Zec'o $ $ $ $ $ $ $ $ TOTAL BID IN NUMBERS-76 ��'00 Page 2 ontractor's Initials I acknowledge that in submitting this bid it is understood that the right to reject any and all bids has been reserved by the owner. Authorized Officer: J Full name signature: _ Company address: 11 1 Glenwood Springs, CO 81601 Telephone number: 970-384-0584 Fax number: 970-384-2518 Attested by:OY�� t , TitlePresident Subcontractor & Material Supplier List Name: Adarand Constructors, Inc Phone#:719-390-4000 Address: 2720 East Las Vegas St. #200, Colorado Springs, CO 80906 Service or Product: Guardrail Name: A-1 Traffic Control Phone#:970-876-0738 Address: 32597 U.S. Hwy. 6 & 24, Silt, CO 81652 Service or Product: Traffic Control Name: Schmueser Gordon Meyer Engineers & Surveyors Phone#:970-945-1004 Address: 118 W. 6th St., Suite 200, Aspen, CO 81601 Service or Product: Engineeri Name. Big R Bridge Phone#:800-234-0734 Address: P.O. Box 1290, Greeley, CO 80632-1290 Service or Product Bridge Rail Supply Name: Phone #: BP1-971.doc 'BPI Page 3 C actor's I tals Address: Service or Product: Name: Address: Service or Product. BP1-971.doc 'BP1 LPag,4 ontractor s Initials BID BOND MOW All PERSONS BY THESE PRESENTS, That we, the undersigned, Mueller Construction Services,_Inc. Of 1113 Huebinger Drive, Glenwood Springs, CO 81601 as Principal, hereinafter referred to as"Prindpal",and Washington International Insurance Company a oo wmbon wwized underthe laws of the Stab of New Hampshire , and qualified to transact business in the State of Colorado, as "Surety" are held and firmly bound unto the City of Aspen, Colorado, as obligee, hereinafter referred to as "City," in the penal sum of: =aAaiDunIrBid Five Percent (5 %) of Amount Bid 5$Pyb2�nt bid Doilare (B 1, lawful money of the United States of America, for the Payment of which sum, well and truly to be made to the City, we bind ourselves, and our heirs, executors, administrators, successors, and assignees, jointly and severally, by these presents. WHEREAS, said Pdnclpal has submitted a bid for onnsbudon of Bridge Guardrail Design and Replacement for Power Plant Road NOW THEREFORE, If the City shall accept the bid of the Principal and the Principal shall enter Into a Contract for Construction with the City In accordance with the terms of such Bid, and given such bond or bonds as may be specified In the Bid Package or Contract Doarnwnts with good and suflldent surety for M fatlfdul performance of such contract and for the prompt payment of labor and material furnished In the prosecution thereat, or in the event of the failure of the Principal to enter such Contract for Construction and give such bond or bonds, t the Principal shall pay to the City the difference not to exceed the penally hereof between the amount specified in said bid and such larger amount for which the Principal may In good faith contract with another party to perform the work covered by said Bid, then this shall be null and void, otherwise to remain In full force and effect In law, SIGNED AND SEALED this .42nd day of September 2009. 4 PRINCIPAL Iler Co 4 ction Services, Inc. By: Title: i II wff � t SURETY: Washington International Insurance Company (seal) Bye al (tti' k I �z�ti�f� -' Ashley K. Bryant U -� Tiffe: Attorney -in -Fad (Accompany this bond with cerifled copy of General Power of Attorney from the Surely Company to Include the date of the bond.) 1311It•97140c Iasi NAS SURETY GROUP NORTH AMERICAN SPECIALTY INSURANCE COMPANY WASHINGTON INTERNATIONAL INSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, THAT North American Specialty Insurance Company, a corporation duly organized and existing under laws of the State of New Hampshire, and having its principal office in the City of Manchester, New Hampshire, and Washington International Insurance Company, a corporation organized and existing under the laws of the State of New Hampshire and having its principal office in the City of Itasca, Illinois, each does hereby make, constitute and appoint: EILEEN A. BLANCHARD, TIMOTHY J. BLANCHARD, ANITA C. KELLER, VIRGINE KORNBLUTH and ASHLEY K. BRYANT JOINTLY OR SEVERALLY Its true and lawful Attorney(s)-in-Fact, to make, execute, seal and deliver, for and on its behalf and as its act and deed, bonds or other writings obligatory in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or permitted by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceed the amount of: TWENTY-FIVE MILLION ($25,000,000.00) DOLLARS This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of Directors of both North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called and held on the 241h of March, 2000: "RESOLVED, that any two of the Presidents, any Managing Director, any Senior Vice President, any Vice President, any Assistant Vice President the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized to attest to the execution of any such Power of Attorney and to attach therein the seal of the Company: and it is FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached." "laalllll111� `potcV,urr/,yf".� - tioNm„e„w 3' as F. By .�'t$;`6RPoq.iTSg SEAL = ..g mP sieve. Amderm, aaldem& Crier Eammroe Orree,ofWa,nmsmn ❑nernmm=n inmd mmnen Compy `�' SEALe?g SWW 1073 4,i & Senior Vice President of North American specialty Insurance Company ar! /141nNMPA�\tc ap //llllllllltattt By David M. Layman, Senior Vim limiden ofWuM1ieopon International lnamonam Company w'n_iw @ Vice President ofNONh American Specialty Insurance Company IN WITNESS WHEREOF, North American Specialty Insurance Company and Washington International Insurance Company have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this Ist day of April , 2009 North American Specialty Insurance Company Washington International Insurance Company State of Illinois County of Do Page ss: On this 1st day of April 20 09 before me, a Notary Public personally appeared Steven P. Anderson , President and CEO of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and David M. Layman , Senior Vice President of Washington International Insurance Company and Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly swom, acknowledged that they signed the above Power of Attorney as officers of and acknowledged said instrument to be the voluntary act and deed of their respective companies. "OFFICIALSEA17 DONNAD.SISLENS Notary Public, State of lllmou My Cmneadmon F_Vires IQg4rplll r, Donna D. Sklens, Notary Public 1, James A. Camenter , the duly elected Assistant Secretary of North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney given by said North American Specialty Insurance Company and Washington International Insurance Company, which is still in full force and effect. IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this 2nd day of September , 20 09 lama A_ Cnryemec Vice preside.& Mslclanl secretary of wasloo on locinmionzl lnsumnce Cnmpo^y& NOM Arnim. Specodo immance Compmy AFFIDAVIT OF COMPLIANCE PROJECT NUMBER: 2009-064 The undersigned contractor has read a copy of the Contract Documents including the construction plans, for this project and understands and hereby affirms that he/she does not now, nor will he/she in the future, violate the provisions of said Contract Documents, so long as he/she is under the Contract to the City of Aspen for the performance of a Contract. The undersigned further acknowledges he/she understands and agrees to all terms and conditions of the Aspen Municipal Code and its being part of the Contract with the City of Aspen. Attest: Corporate Seal STATE OF COLORADO SS. COUNTY Garfield Before me , ha-n Hawkins -,a notary public and for & rT.'e_l d— County, Colorado personally appeared Joy known to � mee1 personally to be the person(s) whose signature(s) in my presence this day of rnb.er , A.D. 20 My commission expires: 513I/a of l (Seal) a .ev,. 1 fi vs'i cnt pua , yes ACI-971dc BP1-971.doc Notary Public 'BP1 Lzage7 ontracto Initials LIQUIDATED DAMAGES for FAILURE TO COMPLETE THE WORK ON TIME The undersigned contractor declares his/her full awareness of the content and terms of this contract affirms that the contractual time is the period mentioned in the contract Specifications plus the extension(s), if any, granted by the City of Aspen for successful completion of project. The undersil contractor further acknowledges he/she understands and agrees to liquidated damages to be deducted i moneys due to him/her for any delayed calendar day beyond the total time at the rate of $500.00 per i This amount and the total allowed time by the City shall not be negotiable under any conditions. Attest: Corporate Seal STATE OF COLORADO ) SS. COUNTY ) Before me Jea-A f4o-wk�ns —,a notary public and for G:�-Ti Jd- County, Colorado personally appeared _Jo c- —ft) u4AJe_r known to me personally to be the person(s) whose signature(s) in my presence this a "� day of Ie-m Jeer , A.D. 2009. My commission expires: J%J�tH fJe (Seal) Ah�r N.n Y.c/I. tP �c/) Ll1-971.d.. *LD I BP1-971.doc *Bpi Notary Public Page 8 Initials City of Aspen Qualification Statement Project No.: `--------------------------------------------------------------- _______ _________________________ ______________________ 1. Firm Name, Business Address, Contact Person 6 Telephone Ner: umb2 Year Present Firm 3. Date This Form Mueller Construction Services, Inc. Established: Prepared: 1113 Huebinger Dr., Glenwood Springs, Co -------------- 6--------------- 8/27/09...... 81601 1c01 4. TYpe of Ownership: A. Small Business Joe Mueller 970-384-0584 B. Minority Owned ____________________________________________________________________________ A C. Women owned -------------------------------------------- ____--- _---- _---- _--- _---------- 5. Names of not more than two principals to contact: Title/Telephone: ' a) Joe Mueller, President, 970-384-0584 b) ---------------------- _______________________________________ 6. Protect Examples, Last 5 Year r._______________ "— --'----------------------� -- ------------------------See--attached_shaet---------- -- ----------------- Project Name, Location 6 Brief Description: IOwner's Name, Address 6 Telephone: Cost of Work- Date ________________________________________________________________ (X $1,000) Completed 1._____________ ___________________________ 2. 6. _________________________________________________________________________________________ ________________________________________________________________________________________r ------------------------------------------- _______________ Project Name--------------------------- 6 Brief Description: one: --Cost-- ______________ Owner's Name, Adtlress 6 Telephone: ', Cost of Work Date ______ ____________________________________________________________________________________________________ -(X $1,000) Completed--------------------------------------------------------------------------------------------------------- 12 13 14.______________________________________________________ __________________________________________________________r________________________________________._____________ ____________� 1H. _ 16. ____________�____________ 17 ______________________________ ----------------------------------------------------------- is. ________________________ ---------- _------- _------ - ______hone______ __ ]. Hank Refernce s, Contact Person, Telephone Number: _____________________________________________________________________________ a) See attached sheet b) c) ---------------- ---------- _____ ___________________ _ 8. Trade References (material suppliers,_subcontractors, etc.),_Contact Person and Telephone Number: _____________ See attached sheet - ----------------------- -------------------------- --------------- ---------------------- Name of Hondin Com___________________________________________ g pany and Insurance Company, Agent's Name. Describe current liability insurance coverage: See attached sheet e ---- - _ _. �:e^ c: .;_ 9 TG. c. Qsl-31: 'oc Q¢1 UELLIER CONSTRUCTION SERVICES, INC. Project Name Owner Architect Orginal Contract Cometion Dat pe Performed by Our Amount Forces Pitkin County Jerry Crown Mountain Mortis 485 Rio Communication Facility Grand Place Unit 101 Trex Architex P. C. $734,244,00 11/19/2009 70% Aspen, CO 81611 970- 920-5763 Grace Church of the REV Grace Church of the Roaring 1776 Emma Rd. Withheld at owner's Fork Valley Basalt, CO 81621 OP - ART, Inc. request Spring 2010 5 % 970- Garfield County Colt Comelius Garfield County Jail Remodel 108 8th St. Glenwood Springs, CO So ns Architects - P $1,007,615,00 12/2008 20% 81601 970-945-1377 David Koenck Xt,1035 Garfield County Marvin Stephens Garfield County Sand Storage 108 8th St. Sopris Architects - Shed Glenwood Springs, CO David Koenck $604,213.00 11/2008 98% 81601 970-625-8601 Xcel Energy Sourcing Rep. Ken Elliott 550 15th St, #1200 Shoshone Hydro Plant Denver, CO 80202 Xcel Energy $455,943,00 03/2008 80^/ 303-571-7503 City of Glenwood Springs Robin Milyard Glenwood Springs Landfill 101 W. 8th St. Glenwood Springs, CO City of Glenwood Springs S97,651.00 05/2008 100% 81601 970-384-6400 Fax 970-945-3488 Midland Center, LLC AI Cappo Midland Center Phase II P-O. Box 2074 Glenwood Springs, CO Sundesign Architects S3,262,995.00 07/2008 10% 81601 970-945-9755 Colorado Mountain College Sam Skramstad Colorado Mountain College -Vet 831 Grand Avenue Tech Classrooms (Spring Valley Glenwood Springs, CO Sundesign Architects S450,000.00 01/2008 70% Campus) 81601 970-945-8691 Fax 970-947-8324 Project Name Owner Architect Orginal Contract Competion Date L. Performed by Own Amount Forces Sans Nom LLC. Craig Rathbun c/o The Fleisher Company Ace Hardware 0326 Hwy. 133, Suite 100 Michael E. Oney $2 547,735,00 05/2007 60% Carbondale, CO 81623 Architect,LLC 970-704-1515 Fax 970- 704-1444 Garfield County Randy Withee Child Advocacy Center 108 8th St. Sopris Architects- $505,577,00 06/2007 20% Glenwood Springs, CO David Koenck 81601 970-625-0973 Rocky Mountain Skin Care Ltd. Dr. Daniel Thimsen Allure Medi Spa 1830 Blake Ave. Jeff Johnson Architects $237,317,00 12/2006 15% Suite 207 Glenwood Springs, CO 81601 970- John C. Bishop Family Castle Creek Bridge Repair Trust John C. Bishop 8639 Chun Drive Oddo Engineering $92,930.00 11/2006 100% Sandy, UT 84093 Crown Mountain Park & Recreation District Ross Stepp Crown Mountain 20 Eagle County Dr. Suite F El Jebel, CO 81623 Studiograppa $398,472.00 01/2007 80% 970-963-6030 Fax 970- 963-6032 Magoo, Inc 403 W. Yale Circle Glenwood Springs, CO Magna's But and Grill 81601 Rosetta Dimiceli The Drawing Board $296,171,00 0612006 20% 970-948-4384 Fax 970- 945-5514 Linda Rousch Remax Real Estate Office 3057 Hwy, 13 Building Remodel Silverthorne Rifle, CO 81650 Michael Shalt Architects $67,72Z00 07/2005 60% SMB Inc. Subway Sandwich Shop P.O. Box 332 Subway Inc. S27,305.15 08/2005 80% Glenwood Springs, CO Glenwood Carwash and Conoco Glenwood Springs, CO 595,000.00 03/2005 70% Pitkin County Airport Parking Aspen/Pitkin County Lot Improvements Airport Carter/Burgess Engineers $176,525.00 05/2006 85% Subway Sandwich Shop 7 P El Jebel, CO Subway Inc. $78,000.00 0IQ005 80% Bureau of Land Management Eagle County, CO Trails and trail heads FILM S68,000.00 09/2005 100% Sunlight Ski Area Waste Water Glenwood Springs, CO Treatment Plant SGM, Inc Engineers $135,000.00 03/2005 100% Colorado Public Radio Glenwood Springs, CO $38,500.00 07/2004 100% Glenwood Springs Community Glenwood Springs, CO Center S14,000-00 06/2004 100% Water Treatment Buildings g Woody Creek, CO Steven Conger Architects $75,000.00 05l2004 80 Book Grove Used Book Store Glenwood Springs, CO $42,000.00 06/2004 30% SubwaySandwich Shop P Edwards, CO Subway Inc. S73,000.00 05/2004 80% Valley Li uor Store Remodel y 9 Glenwood Springs, CO O.Jonhasson Architects $158,000.00 12/2003 65 REFERENCES Bank Reference: Wells Fargo Business Banking 2808 North Ave. Grand Junction, CO 81501 Bill Rockwood 970-242-8822 Trade References: Gould Construction P.O. Box 130 Glenwood Springs, CO 81602 Peter Ware, Project Manager 945-7192, Ex 17 Hap's Plumbing & Heating, Inc. 2550 Hwy 82 Glenwood Springs, CO 81601 970-928-9222 Name of bonding company: Washington International Insurance Company Name and address of agent" Hub International/Blanchard Insurance Group, Inc. P.O. Box 60130 Grand Junction, CO 81506 Tim Blanchard (970) 245-8011 MEMORANDUM TO: MAYOR AND ASPEN CITY COUNCIL FROM: STEVE BOSSART, ASSET— PROJECT MANAGER THROUGH: STEVE BARWICK, CITY MANAGER SCOTT MILLER, CAPITAL ASSET DIRECTOR DATE: SEPTEMBER 16, 2009 RE: AABC HOUSING REQUEST OF COUNCIL: Capital Asset Staff requests Council's approval of Resolution #1L to proceed with Part 2 of the contract to construct the AABC Eco Lofts City Employee Housing project. PREVIOUS COUNCIL ACTION: 2006 Part 1 contract for planning and design services, and demolition of the old animal shelter building and apartments. BACKGROUND: The AABC Eco Lofts project is a City of Aspen Employee Housing project located at the Aspen Airport Business Center in Aspen, Colorado. The program for the project consists of four (4) one -bedroom units each containing 790 square feet of livable area and one (1) studio unit containing 505 square feet of livable area. The 2005 RFP requested developer services to optimize site utilization and the use of green technologies, while considering up -front development costs. The winner of the competition was WPA of Aspen Colorado. The Part 1 contract was executed in 2006. In October 2006 the Board of Commissioners of Pitkin County granted a rezoning from B-2 to AH/PUD The City has since worked with the development team to explore alternate means and methods in an effort to make the project most cost effective. The initial design maximized available square footage through a curved design. Changing to a rectangular format provided opportunities for general costs savings, as well as potential to utilize manufactured modular housing units. We have since evaluated ten variations of construction including traditional site built framing, factory panels, and complete modular units. Simultaneously we researched comparable projects to determine best methods and cost results. Due to our original design documents, the cost of traditional construction resulted in hard bid cost information (pending final approvals), while the factory -built approach provided conceptual estimates. The latter option required final construction documentation to enable more concrete pricing results. We compared traditional construction against the factory -built modular pricing data. Modular construction provided a 2% lower overall building cost, due in part to a reduction in square footage. Once the additional redesign costs were added we found traditional stick and panel construction provided the lowest overall and unit price, by approximately 1%. DISCUSSION: The AABC housing is a small project to be financed through the 505 City housing fund with contributions having accumulated over several years. The total contribution to the AABC project is currently $1,424,423. The recent internal housing demand survey provided 76 responses indicating interest in units with current City employment deed restrictions. Pitkin County project approvals expire in November 2009. FINANCIAL/BUDGET IMPACTS: Based on a total projected budget of $2,826,806, less paid costs to date of $435,716, additional funding to be appropriated is $2,391,090, including City staff time and the Developer Guaranteed Maximum Price (GMP) contract. The Part 2 contract to be approved by this Ordinance involves a total of $2,030,107 including design, Pitkin County development fees, Developer/Contractor bonding, Developer fees, and construction costs. The construction estimate represented herein dates to April and will be reviewed and re -estimated with the Developer and Asset Management. The contract allows a 5% change increase to cover cost changes before Council reevaluation. Preliminary projected costs for the project are as follows: COST CATEGORY AMOUNT NOTES SOFT COSTS Design Costs to Date: $435,716 Actual planning & design soft costs incurred to date Additional Architect Fees: $91,665 Projected for const. docs, developer selection & const ac Pitkin County Comm. Dev. Fees: $153,000 Projected cost of planning Pitkin County planning/fees CifStaff Time: $104,000 Projected staff cost SUBTOTAL Soft Costs $784,381 HARD COSTS Construction Costs: $1,657,480 Based on actual bids received, April 2009 Developer/Contractor Bonding: $24,862 Projected cost 1.5% Const Costs Developer's Fee: $103,100 Projected cost SUBTOTAL Hard Costs $1,785,442 TOTAL PROJECTED COSTS $2,569,823 PROJECT CONTINGENCY $256,982 10% of "Total Project Costs"** GRAND TOTAL 1 $2,826,806 Net subsidy amounts would be approximately $457,000 for each 1 bedroom unit and $251,000 for the one studio, based on Category 3 selling prices for purposes of example. Lower categories would cause higher subsidies, while higher categories would reduce the net subsidy. ENVIRONMENTAL IMPACTS: The project site is within the developed AABC development and was a previously developed parcel. Deconstruction of the original building involved environmental assessment and minor mitigation of ACMs (Asbestos Containing Materials) in floor tile and drywall compound. The project as designed is a balance of structure, insulation, and sensible levels of passive solar, while providing for future active solar elements. Current plans do not include geo-exchange and it is likely, given the geology and budget constraints, that such systems would be cost prohibitive. There is a possibility to take the project through a Building America program review, pending DOE funding availability. Building America was the partner on Burlingame Phase one and has proved very successful in assisting the development team attain significant energy saving results. Even without actual Building America participation our goals are to meet the same standards. We intend to explore grants from CORE to incorporate in -home energy -monitoring displays. Under building parking utilizes the structure footprint and reduces operational costs for snow removal. RECOMMENDED ACTION: Staff recommends proceeding with the AABC Housing Part 2 Contract as proposed, recognizing the Value Engineering reductions balanced against sound envelop and system designs. ALTERNATIVES: • Council may wish to revert to the original "concept', exploring more active but more costly energy systems. • Council may choose disposition of the parcel. PROPOSED MOTION: I move to approve Resolution #% to proceed with Part 2 of the contract to construct the AABC Eco Lofts City Employee Housing project. ATTACHMENTS: AABC model photograph, A-3.1 Elevation, A2.1 Ground Floor Plan, A2.1 ve Ground Floor Plan. �m�� 4D m==W Y� L�� %� EI. `'i'_aELEV�iION IS TREE% Lya7 un m �� L1= ELEVATIONS CITY EMPLOYEE NOUS () CAT M CHI 14 m Y®IEOOY YMl{ A B C E - E T I T I O N I (I1)CAT A - 2 ASPEN AIRPORT BUSINESS CENTER ASPEN, CO 81611 a I gg c B,Ls I N—}- ig o I- aroHAae — =—i--------- 1 El . r aTdHAeE J— L = Trs I � I I 4I� '�' I❑ \ I� _ I NGES TO XISTING STICK BUILT SCHEME INCLUDE: 1. PLUMBING RUNS ABOVE STORAGE CLOSETS IN DROPPED SOFFIT 3. ELIMINATION OF SOLAR NOT WATER SYSTEM.AN 14 ULM MECHANICAL CLOSETS. 3. RELOCATION O ECH. HAS WITHIN EACH LIVING UNIT. -- - 4. ELIMINATIOOF PV SYSTEM. ,e'-r 5. NO CHANGESN TO FUNDAMENTAL REQUIREMENTS OF LIVING UNITS. ELIMINATION OF TWO EXTERIOR STAIRS ON GRIDS'0' AND'F'. B. INGSITE RETAINING WALL TO REMAIN AS SHOWN, OM OF SITE N PROPERTY EDGE RETAINING WALL, S'X60'. EXIST 9. SITE DRAINAGE, YARD DRAINS, TRENCH DRAINS AND DRY -WELL SYSTEM TO REMAIN IS. _ — 10. SIMPLIFIED LANDSCAPE DESIGN — — — — 1LTONE NGROUND LEVEL PLAN CITY EMPLOYEE 009 SIN I pear 1-2 STUDIO II CAT 1-2 BEDROOM UNITS AIC ECO-LOFTS - VE OPTION I ro 212 ASPEN AIRPORT BUSINESSCENTER v.�A-21-ve ASPEN, CO RESOLUTION #"77 (Series of 2009) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND WPA, LLC SETTING FORTH THE TERMS AND CONDITIONS REGARDING AABC CITY EMPLOYEE HOUSING PROJECT 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 WPA, LLC, 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 WPA, LLC regarding the AABC City Employee Housing Project 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: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held September 28, 2009. Kathryn S. Koch, City Clerk the CILV of Aspen City pparneV� C�ice Part 2 Agreement between City of Aspen and Developer This Agreement, made and entered into on August 31st 2009 by and between the CITY OF ASPEN, 130 S. Galena Street, Aspen, Colorado 81611, hereinafter called the "City", and Developer: W PA, LLC 412 North Mill Street Aspen, CO 81611 For the following project: (Include Project name, location, and summary description) 212 AABC City Employee Housing Aspen, CO 81611 A five -unit, for sale residential development for City Employees The architectural services described herein shall be provided by the following person or entity who is lawfully licensed to practice architecture: (Name and address) (Registration Number) (Relationship to Developer) Willis Pember Architects, Inc #400014 consultant 412 N. Mill Street, B-1-3 Aspen, CO 81611 The planning services described herein shall be provided contractually through the Architect except as indicated below: (Name and address) (Registration Number) (Relationship to Developer) Elk Mountain Planning Group, Inc. #008594 consultant PO Box 11891 A.I.C.P. Aspen, CO 81611 DB4-03.doc '•DB4 Page 1 Normal structural, mechanical and electrical engineering contractually through the Architect except as indicated below: (Name and address) (Registration Number) n/a The City of Aspen and Developer agree as set forth below: ARTICLE 1 DEFINITIONS services shall be provided (Relationship to Developer) 1.1. Whenever the words, forms, or phrases defined herein, or pronouns used in their place occur in the Contract Documents, the intent and meaning shall be interpreted as follows: ASCE American Society of Civil Engineers NACE National Society for Corrosion Engineers SSPC Special Society for Paint Council AASHTO American Association of State Highway and Transportation Officials AIA American Insurance Association SICS American Institute of Steel Construction AISI American Iron and Steel Institute ANSI American National Standards Institute (formerly ASA and USASI) ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWG American Wire Gauge AWS American Welding Society BAFO Best and Final Offer CDOT Department of Transportation, State of Colorado O&M Operations and Maintenance DHA Detailed Hazards Analysis EBD Escrow Bid Documents EIA Electronic Industries Association EPA United States Environmental Protection Agency FCC Federal Communications Commission FHWA Federal Highway Administration FTA Federal Transit Administration HVAC Heating, Ventilation, and Air Conditioning NBS National Bureau of Standards NEC National Electric Code NTP Notice to Proceed NESC National Electric Safety Code NFPA National Fire Protection Association DB4-03.doc '•DB4 Page 2 OSHA Occupational Safety and Health Administration PHA Preliminary Hazards Analysis SAE Society of Automotive Engineers UL Underwriter's Laboratories, Inc. UMTA United States Department of Transportation, Authority UD&FCD Urban Drainage and Flood Control District MUTCD Manual on Uniform Traffic Control Devices Urban Mass Transportation 1.2. Wherever used in this Agreement or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof: Addenda - Written or graphic instruments issued prior to the opening of Proposlas which clarify, correct or change the bidding documents, Contract Documents, drawings, details or specifications. Addenda also refers to City approved changes to Developer's Proposal submitted to City as part of the Part One Agreement. Bonds - Performance, payment, maintenance bonds and other acceptable instruments of financial security, furnished by the Developer and his/her surety in accordance with the Contract Documents. Change Order - A written order to the Developer authorizing an addition, deletion or revision in the Work within the general scope of the Contract Documents, or authorizing an adjustment in the Contract Price or Contract Time, issued on or after the Effective Date of this Part 2 Agreement. City or Owner - The City of Aspen in Pitkin County, Colorado. Construction Documents — A general term that includes technical drawings, diagrams, illustrations, samples, schedules, calculations, specifications, and other data which provide details of construction of the Work, illustrate the construction of the Work, material, equipment, methods, and items which are necessary to construct the Work, and provide details for inspection of the Work. The Construction Documents shall be prepared by the Developer, his subcontractors, manufacturers, suppliers or distributors. Construction Document are submitted to the City for review for conformance with the intent of the Developer's Proposal. Contract - All contract documents referenced by this Agreement and made a part herein. Contract Documents - The Contract Documents which comprise the entire agreement between the City and Developer consist of the following: 1. This Part 2 Agreement. 2. Exhibits to this Part 2 Agreement. (Pages to , inclusive) 3. All deliverables provided by Developer to City in accordance with the Part 1 Agreement, including, but not limited to, those deliverables identified as part of the Basic Services, including Developers Proposal. DB4-03.doc ••DB4 Page 3 4. the 5. 6. 7. 8. 9. 10. 11. 12. Developer's Proposal in response to City's Request for Proposals, including Statement of Qualifications, etc. Notice of Award. Notice to Proceed. Special Conditions. Technical Specifications and Drawings. Addendum No. All written amendments to this Part 2 Agreement, Payment, performance, and maintenance bonds. Liquidated Damages Form. including Change Orders. Contract Price - The moneys payable by the City to the Developer under the Contract Documents as stated in this Agreement, except for the Minor Contract Revisions item(s) which are subject to the City's written authorization for expenditure. Contract Time - The number of the consecutive calendar days or the working days and/or the deadline set in the Contract Documents for the completion of the Work. Daily Construction Log - The form furnished by the Developer and used by the City's Representative to record the Developer's daily work quantities and project events. Defective - An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to the City's Representative's recommendation of final payment (unless responsibility for the protection thereof has been assumed by the City at Substantial Completion in accordance with paragraph 14.5 or 14.6). Developer - The qualified responsible and responsive firm or corporation with whom the City has entered into the Part 1 and/or Part 2 Agreement. Drawings - The part of the Contract Documents which show the character and scope of the Work to be performed and which have been prepared or approved by the City. Effective Date of the Agreement - The date indicated in this Agreement on which it becomes effective. Field Order - A written order affecting a change in the Work not involving an adjustment in the Contract Time, issued by the City to the Developer during construction. Hazardous Materials - The term "Hazardous Materials" shall have the meaning set forth at 42 U.S.C. ' 9601(14) and regulations promulgated pursuant thereto. Laws and Regulations; Laws or Regulations - Laws, rules regulations, ordinances, procurement code and/or orders. DB4-03.doc •+DB4 Page 4 Notice of Award - The written notice by the City to the Developer stating that upon compliance by the Developer with the conditions precedent enumerated therein, within the time specified, the City will sign and deliver this Agreement. Notice to Proceed - A written notice given by the City to the Developer fixing the date on which the Contract Time will commence to run and on which Developer shall start to perform Developer's obligations under the Contract Documents. Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended (or a related purpose) before reaching Substantial Completion for all the Work. Procurement Code - Title 4 of the City of Aspen Municipal Code. Progress Pay Estimate - The form furnished by the City, which is to be used to record, approve, and process payment when the Developer requests progress or final payments and which is to include such supporting documentation as is required by the Contract Documents. Project - The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part as indicated elsewhere in the Contract Documents. Proposal — Developer's Proposal as well as the preparation and modifications to the Proposal submitted by Developer to the City in accordance with the requirements of the Part 1 Agreement. The Proposal shall constitute part of the Contract Documents and shall reflect the overall intent of the Work to be performed by Developer in this Part 2 Agreement, including the product of Developer's Work, including Basic Services and Additional Services as detailed in the Part 1 Agreement. Proposer - Any qualified responsible and responsive firm or corporation submitting a Proposal in response to the City's Request for Proposals. Punch List - A form or letter that lists all incomplete or deficient Bid items, and is prepared upon substantial completion of the Work by the City. Shop Drawings - All drawings, diagrams, illustrations, brochures, schedules and other data which are specifically prepared by or for the Developer and any subcontractor(s) to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared by a Supplier and submitted by the Developer to illustrate material or equipment for some portion of the Work. Specifications - Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto. Subcontractor - A firm or corporation having a direct contract with the Developer or with any other Sub -Contractor for the performance of a part of the Work at the site. D134-03.doc **DB4 Page 5 Substantial Completion - The Work (or a specified part thereof) has progressed to the point where, in the opinion of the City as evidenced by the City's acceptance, is sufficiently complete, in accordance with the Contract Documents, so that the Work can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion thereof. The term Substantial Completion shall mean one hundred percent (100%) completion of the Work. Special Conditions or Special Provisions - The part of the Contract Documents which amends or supplements this Part 2 Agreement. Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor who supplies materials or equipment for the Work including that fabricated to a special design but who does not perform labor at the site. Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services for materials; electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater and surface runoff removal, traffic or other control systems. Unit Price Work - Work to be paid for on the basis of unit prices. Work - The services provided by the Developer and the entire completed construction or the various separately identifiable parts thereof required to be furnished under the Contract Documents. Work is the result of performing services, 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 Developer on or after the Effective Date of this Part 2 Agreement and normally dealing with the non -engineering or non -technical rather than strictly Work -related aspects of the Contract Documents ARTICLE 2 PRELIMINARY MATTERS DB4-03.doc "DB4 Page 6 2.1 Delivery of Bonds: When Developer delivers the executed Contract Documents to the City, the Developer shall also deliver such Bonds as the Developer is be required to furnish in accordance with paragraph 5.1. 2.2 Copies of Documents: The City shall furnish to the Developer up to three copies (unless otherwise specified in the Special Conditions) of the Contract Documents as are reasonably necessary for the execution of the Work. Additional copies will be furnished, upon request, at the cost of reproduction. 2.3 Commencement of Contract Time, Notice to Proceed: Prior to the City issuing a Notice to Proceed, the City of Aspen City Council shall approve the Contract Documents and either the City Manager or the Mayor shall execute the same. Notwithstanding any representations to the contrary made by City's employees, either directly, indirectly, or by implication, no Contract shall be in effect nor shall be binding upon the City until such time as the Contract is executed by the City pursuant to authority granted in accordance with Section 4-08-040 of the Procurement Code. The City shall issue a Notice to Proceed after (a) the City Council has approved the Contract Documents and (b) the City Manager or Mayor has executed this Part 2 Agreement, and (c) the Developer has executed this Part 2 Agreement and other Contract Documents, and has delivered the specified bonds, Certificates of Insurance, as are required, and any other documents required to be delivered by the Special Conditions and Addenda(s), if any issued. The Contract Time will commence to run on the day indicated in the Notice to Proceed. 2.4 Starting the Project. The Developer shall start to perform the Work on the date when the Contract Time commences to run, but no Work shall be done at the site prior to the date on which the Contract Time commences to run and prior to a mandatory pre -construction conference conducted by the City. 2.5 Before Starting the Project: Before undertaking each part of the Work, the Developer shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. The Developer shall promptly report in writing to the City any conflict, error or discrepancy which Developer may discover and shall obtain a written interpretation or clarification from the City before proceeding with any Work affected thereby. 2.5.1. Prior to the Pre -Construction conference referenced at Section 2.6 below, the Developer shall submit to the City for review: DB4-03.doc "DB4 Page 7 2.5.1.1. A Final Detailed Schedule to include a precedence diagram which clearly shows the logical progression of the Work stages and operations for major phases of the Work. The submittal shall clearly show the inter -relationships, interdependencies, and sequence of all activities or events that must be accomplished in order to complete the Work. The schedule shall include detail of the coordination of the activities defined. The critical path activities shall be prominently distinguished. The submittal shall also include a Time Scaled Logical Diagram, time -scaled in calendar days, covering the calendar time from the Notice to proceed to the specified contract termination date. All activities shall be shown and shall be plotted on their early start and finish dates. Activity information shall include each activities' description, duration, float, and responsibility. 2.5.1.2. A Traffic Control & Barricading Plan for each segment of the street, a narrative of the planned sequence of construction indicating the approximate date and time duration of any road or street restrictions or closures, utility interruptions, etc., as applicable to this project. 2.5.1.3. A list of emergency (24 hour) contact name(s), addresses and phone numbers . 2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action process. 2.5.1.5. Quality Control and Quality Assurance (QA/QC) plan and policy to identify the specific steps the Developer will take to ensure the highest quality in the constructed items. 2.5.1.6. A preliminary schedule of Shop Drawing submissions. 2.5.1.7. A breakdown of each item that establishes the value of the various components of the Work required to be completed in such form and detail as will allow progress estimates. The total of each lump sum bid breakdown shall equal the amount stated in Developer's Proposal for that item. The Developer shall modify the lump sum breakdown in accordance with the City's comments and return a revised breakdown. After receipt of the revised lump sum breakdown, it will be used by City in making progress estimates for partial payments. 2.6 Pre -construction Conference: Within seven (7) consecutive calendar days after the effective date of the Notice to Proceed, and before the Developer starts the Work at the site, Developer and all of its Subcontractors and Suppliers shall attend a mandatory pre -construction conference, conducted by the City and others as appropriate to discuss coordination of construction activities, procedures for handling Shop Drawings, reviewing the Contract Documents to ensure clarity, and other DB4-03.doc "DB4 Page 8 issues, and to establish a working understanding among the parties as to the Work. And its progress. 2.7 Project Progress Meetings The City and the Developer shall meet once a week to review the construction activities, rate of progress, and other project related issues to ensure efficient and smooth progress of work. ARTICLE 3 CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.1 Intent. The Contract Documents comprise the entire agreement between the City and the Developer concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the law of the State of Colorado. 3.1.1. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result will be supplied whether or not specifically called for. When words which have a well-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or Laws or Regulations in effect on the effective date of this Part 2 Agreement except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of the City or the Developer, or any of their consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective to assign to the City, or any of the City's consultants, agents or employees, any duty or authority to supervise or direct the furnishing or performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of Article 9. Clarifications and interpretations of the Contract Documents shall be issued by the City as provided in section 9.4. 3.1.2. If, during the performance of the Work, Developer finds a conflict, error or discrepancy in the Contract Documents, the Developer shall so report to the City in writing at once and before proceeding with the Work affected thereby and shall obtain a written interpretation or clarification from the City. DB4-03.doc "DB4 Page 9 3.1.3. If the Developer 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 Developer shall notify the City in writing. Neither the Developer nor and Subcontractor of the Developer shall be obligated to perform any act which either believes will violate any laws. 3.1.4. Nothing contained in the Part 2 Agreement shall create a contractual relationship between the City and any person or entity other than the Developer. 3.2 Amending and Supplementing Contract Documents: The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: 3.2.1. A formal Amendment of this Part 2 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 City's approval of a Shop Drawing or sample (pursuant to paragraphs 6.18); or, 3.2.3.3. The City's written interpretation or clarification (pursuant to paragraph 9.4). 3.3 Precedence of Contract Documents: In the event of discrepancies or conflicts between the various components of the Contract Documents, the order of precedence shall be as follows: 1. Change Orders, Work Change Directives, or formal written Amendments to this Part 2 Agreement. 2. Scope of Work dated attached as Exhibit A. 3. Developer's Proposal dated 9/7/2004 and Addenda dated 11/3/2004 (approved by the City) submitted as part of the Part 1 Agreement. 4. Drawings: a. Detailed drawings. b. Standard drawings. 5. Technical Specifications. DB4-03.doc ""DB4 Page 10 6. Special Conditions. 7. Part 2 Agreement 3.4. Ownership of Design Materials and Documents: 3.4.1. The copies or other tangible embodiments of all design materials, whether or not such materials are subject to intellectual property protection, including but not limited to documents, shop drawings, computer programs developed for the Project or if such programs are not the property of Developers the results of the use of them by Developer, data, plans, drawings, sketches, illustrations, specifications, descriptions, models, the Design Documents, as -built documents and any other documents developed, prepared, furnished, delivered or required to be delivered by the Developer to City under the Contract Documents (collectively "Design Materials") shall be and remain the property of the City whether or not the Project or Work is commenced or completed; provided, however, that City makes payment for the documents in accordance with the Contract Documents. During the term of the Agreement, the Developer shall be responsible for any loss or damage to the Design Materials, while the Materials are in the possession of the Developer or any of its Subcontractors, and any such Design Materials lost or damaged shall be replaced or restored at the Developer's expense. The intellectual property rights, if any, to the contents of or concepts embodied in the Design Materials shall belong to the Developer or its Design Subcontractors in accordance with their contractual relationship and may be copyrighted by them in the United States or in any other country, or be subject to any other intellectual property protection. 3.4.2. As to those Design Materials subject to copyright or as to which patent or trademark, or any other form of intellectual property protection has been, is or will be obtained, the Developer grants to City as of the date that the Design Materials are delivered or required to be delivered to the City, a world-wide, paid -up, nonexclusive, nontransferable (except as provided) license for the term of intellectual property protection, for the City to use, reproduce and have reproduced, display and allow others to display and to publish and allow others to publish, in any manner, at any time and as often as it desires, with or without compensation to the Developer or any third party subject to the following restrictions: (a) All copyright and other intellectual proprietary rights in or relating to any of the Design Materials, shall remain the property of the Developer or Design Subcontractor whether or not the Project is constructed. It is understood that, except as provided in this paragraph, the Developer and Design Subcontractor shall have the right to use any detail, part, concept or system(s) shown on, specified in, or inferable from the Design Materials on any other project and to retain copies for the Developer's or Design Subcontractor's future use; (b) City shall not, without prior written consent of the Developer or Design Subcontractor use Design Materials or documents, in whole or in part, for the construction of any other project. If, however, City agrees to indemnify the 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 Developer is in default under this Contract and the Contract is terminated, City shall be entitled to use the Design Materials for completion of the Project by others without additional compensation, or a release, indemnification or other action by City; (c) Any reproduction of the Design DB4-03.doc "DB4 Page 11 Materials or part of them shall be faithful and accurate to the original and of good quality; (d) City shall not remove or alter, and shall reproduce and prominently display on all copies made by City, the copyright notice and other proprietary legends appearing on the Design Materials when delivered to City. The restrictions set forth in (c) and (d) above shall be imposed by City on any third party to whom the City allows to display or publish the Design Materials. 3.4.3. It is understood that City considers the Project's aggregate architectural expression (that is, the overall combination of the Project's visually apparent design features) and any distinctive individual features, to be unique and of commercial value, and the Developer and its Design Subcontractors agree not to design or build, or allow other third parties the use of the Design Materials to design or build another structure(s) having a substantially similar architectural expression so that an average person would relate the structure(s) to the Project. Developer and its Design Subcontractors shall, however, be free to use individual features from the Project or combinations of features in other projects, so long as the Developer complies with the first sentence of this paragraph. Developer shall include this provision in its contracts with its Design Subcontractors and provide copies of these agreements to City. 3.4.4. As of the Date of Substantial Completion of the Project, or in the event of termination of the Agreement, Developer shall turn over to City any of the Design Materials referred to above which have not yet been submitted to City. Developer shall submit the Design Materials to City within ten days of the Date of Substantial Completion, or date of termination. In the event of the failure by Developer to make such delivery as provided above, Developer shall pay City any damages City may sustain from the failure. 3.4.5. Developer shall prepare modifications of the original contract drawings to reflect significant changes made during construction ("as -built plans"). Developer shall provide to the City electronic versions of all work product, in the format directed by the City. Acceptable formats: a) Reproducible plans or drawings will be at a scale acceptable to the City and in AutoCAD version 2004 format on compact disk. b) Any project word processing documents will be submitted in MS Word Windows XP version on compact disk. c) Any GIS work product produced for the project will be submitted by the Consultant in the following format: i. Format: ARCINFO export format with no compression or AutoCAD dxf format or ARCINFO shapefile format. ii. Coordinate System: All data will use the following coordinate system Stateplane Colorado Central Zone FIPS Zone 502 Units: US Survey Feet Horizontal Datum: NAD83 Vertical Datum: NAVD88 DB4-03.doc "DB4 Page 12 iii. Metadata: All data layers must have metadata that conforms to the Federal Geographic Data Committee Standards (FGDC) iv. Media: All information will be written to CDROM, using ISO9000 standard and include documentation describing the files contained on the CDROM. Adobe Illustrator, Quark Express or other drawing programs are not acceptable GIS formats. PDF submittals in lieu of any of the above formats will not be accepted. ARTICLE 4 AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS 4.1 Availability of Lands: The City shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights -of -way, and easements for access thereto. The Developer shall have full responsibility with respect to any conditions or provisions contained in applicable easements relating to the lands upon which the Work is to be performed. 4.2 Physical Conditions: 4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Special Conditions for identification of those reports of explorations and tests of subsurface conditions at the site that have been utilized by the City in preparation of the Contract Documents. The Developer may not rely upon the accuracy of the technical data contained in such reports, or upon non- technical data, interpretations or opinions contained therein or for the completeness thereof for the Developer's purposes. Developer shall verify to its satisfaction the information and data contained in such reports. Developer shall have full responsibility with respect to subsurface conditions at the site. Developer shall exercise ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in such reports. 4.2.2. EXISTING STRUCTURES: Reference is made to the Special Conditions for identification of those drawings of physical conditions in or relating to existing surface and subsurface structures (except Underground Facilities referred to in paragraph 4.3) which are at or contiguous to the site that have been utilized by the City in preparation of the Contract Documents. The Developer may not rely upon the accuracy of the technical data contained in such drawings, or for the completeness thereof for the Developer's purposes. Developer shall have full responsibility with respect to physical conditions in or relating to such structures. The Developer shall exercise ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in such drawings. 4.2.3. REPORT OF DIFFERING CONDITIONS: If the Developer believes that any physical condition uncovered or revealed at the site differs materially from that indicated, reflected or referred to in the Contract Documents, then, the Developer shall promptly, after becoming aware thereof and before performing any Work in connection therewith (except in an DB4-03.doe "DB4 Page 13 emergency as permitted by paragraph 6.18) notify the City in writing about the inaccuracy or difference. 4.2.4. CITY'S REVIEW: The City will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise the Developer in writing of the City's findings and conclusions. 4.2.5. POSSIBLE DOCUMENT CHANGE: If the City concludes that there is a material error in the Contract Documents caused by the City and not as a result of the Developer's unwarranted reliance thereon, and a change in the Contract Documents is required, a Change Order will be issued as provided in Article 10 to reflect and document the consequences of the inaccuracy or difference. 4.2.6. POSSIBLE PRICE AND TIME ADJUSTMENTS: In each such case, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, may be allowable to the extent that the error was caused by the City and not as a result of the Developer's unreasonable reliance thereon or Developers fault, and they are attributable to any such inaccuracy or difference as described in Section 4.2.3. The Developer shall meet and obtain approval from the City prior to implementing any such change in the Work. 4.3 Physical Conditions - Underground Facilities: 4.3.1. SHOWN OR INDICATED: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to the City by the owners of such Underground Facilities or by others. Unless it is otherwise expressly provided in the Special Conditions: 4.3.1.1. The City shall not be responsible for the accuracy or completeness of any such information or data; and, 4.3.1.2. The Developer shall have full responsibility for determining the existence of all Underground Facilities, for reviewing and checking and potholing for all such information and data, for locating all Underground Facilities shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during construction, for the safety and protection thereof as provided in paragraph 6.17 and for repairing any damage thereto resulting from the Work, the cost of all of which will be considered as having been included in the Contract Price. 4.3.1.3. The Developer shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury, or loss to other property at the site or adjacent thereto, and he shall be liable for any and all claims for such damage on account of his failure to fully provide such protection. The Developer shall notify all public utility companies at least forty-eight (48) hours prior to commencement of any Work in the vicinity of the utilities. No Work shall commence DB4-03.doc "DB4 Page 14 until the utilities have been located and marked by the utility company. If utility service must be interrupted, the Developer shall coordinate with the respective utility provider at least forty-eight (48) hours prior to interruption. Notice shall consist of publication in a local newspaper and/or announcement on local radio stations as determined by the City. Public utility companies shall include the City's water and electric departments. 4.3.2. NOT SHOWN OR INDICATED: If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and which Developer could not reasonably have been expected to be aware of, Developer shall, promptly after becoming aware thereof and before performing any Work affected thereby (except in an emergency as permitted by paragraph 6.18), identify the owner of such Underground Facility and give written notice thereof to that owner and to the City. The City will promptly review the Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and document the consequences of the existence of the Underground Facility, and the Contract Documents may be amended or supplemented to the extent necessary. During such time, Developer shall be responsible for the safety and protection of such Underground Facility as provided in paragraph 6.17.1. The Developer may be allowed an increase in the Contract Price or an extension of the Contract Time, or both, to the extent that they are attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and of which the Developer could not reasonably have been expected to be aware of such Underground Facility and subject to acceptance and approval by the City. 4.4 Reference Points: 4.4.1. The City shall provide engineering surveys to establish reference points for construction which in the City's judgment are necessary to enable Developer to proceed with the Work. Developer shall be responsible for laying out the Work, shall protect and preserve the established reference points and shall make no changes or re -locations without the prior written approval of the City. The Developer shall report to the City whenever any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points by a Registered Professional Land Surveyor Licensed in the State of Colorado. 4.4.2. The Developer shall be responsible for establishing grades from the Bench Mark(s) established and described in the Contract Documents. At a minimum, the Developer shall establish a construction base line, layout staking and cut sheet(s) by an insured Colorado registered professional land surveyor. The Developer shall be responsible for protecting and/or re-establishing bench mark control if necessary during the construction process. 4.5 Protection and Restoration of Property and Landscape: 4.5.1. The Developer shall be responsible for the preservation of all public and private property and shall protect carefully from disturbance or damage all land and property and DB4-03.doc "DB4 Page 15 shall protect carefully from disturbance or damage all land and monuments and property marks until the City has witnessed or otherwise referenced their location and shall not remove them until directed. 4.5.2. The Developer shall be responsible for all damage or injury to property of any character, during the prosecution of the Work, resulting from any act, omission, neglect, or misconduct in his manner or method of executing the Work, or at any time due to defective Work or materials, and said responsibility shall not be released until the project shall have been completed and accepted. 4.5.3. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct by the Developer in the execution of the Work, or in consequence of the non -execution thereof by the Developer, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or he shall make good such damage or injury in an acceptable manner. 4.5.4. State Highway 82 and the streets within the corporate limits of the City of Aspen are viewed by the City as a community asset which enhances the tourism industry. The City, therefore, desires to save all vegetation and other environmental features except for those which have been specifically identified for removal in the Contract Documents. 4.5.5. Materials storage, equipment parking, vehicle parking and stockpiling excavated materials shall be allowed only in those areas designated by the City. 4.5.6. Specific areas of vegetation and other environmental features to be protected shall be staked, fenced, or otherwise marked in the field by the City. However, the fact that areas of vegetation and other environmental features are not marked shall not necessarily mean that those items are expendable. The Developer shall perform all his activities in such a manner that the least environmental damage shall result. Any questionable areas or items shall be brought to the attention of the City for approval 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 this Part 2 Agreement. 4.5.7. If the fence, staking or marking is knocked down or destroyed by the Developer, the Developer shall suspend the Work in whole or in part, until the fence or other protection is repaired to the City's satisfaction at the Developer's expense. Time lost due to such suspension shall not be considered a basis for adjustment of Contract Time or for compensation to the Developer. 4.5.8. If the Developer disturbs any of the landscape not called for removal, he/she shall restore those areas as directed at the Developer's expense. 4.5.9. The City may require that the Developer replant an area that is damaged. The Work shall be done as directed by the City. If the Developer is deemed to be responsible, then the replanting shall be done by the Developer at his/her expense. If the City is responsible, the DB4-03.doc "DB4 Page 16 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 Developer at his/her expense. If he/she fails to do so within a reasonable length of time as determined by the City and prior to the end of the contract time, the replacement value of the trees or shrubs will be deducted from any money due to the Developer. These values shall be based upon averages derived from current prices of nurseries growing the plants, plus the cost for planting and a guarantee for the first growing season. 4.5.10.2. When trees or shrubs beyond replaceable size have been damaged or destroyed, the value of such trees or shrubs shall be calculated as per square yard of surface area measured at the ground level. 4.5.10.3. Any deduction assessed as liquidated damages under this section shall not relieve the Developer from liability for any damages or costs resulting from delays to the City, traveling public or other Developers. 4.6 Hazardous Materials 4.6.1. Prior to commencement of any Work and as a condition precedent to payment by the City of any costs for it, the Developer shall at no additional cost to the City conduct tests the Developer deems necessary to determine the existence of Hazardous Materials by appropriately licensed Subcontractors or entities. The City shall reimburse the Developer for the invoice costs of the tests, only in the event that the Developer furnishes the City with certified test data and results which confirm the existence of Hazardous Materials. 4.6.2. If Hazardous Materials are discovered on or under real property which is owned by the City before the date of Substantial Completion and Acceptance in accordance with Article 14 herein, which property is within the Project right-of-way, the City shall, upon the request of the Developer, and at the City's sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed from such real property and transported for final disposal in accordance with all Laws and Regulations, and shall cause such real property to be restored to its condition existing prior to such removal (except for the absence of Hazardous Materials), including, to the extent required, any grading and reinforcement necessary to restore the weight -bearing capacity of such real property prior to such event. The City shall remove the Hazardous Materials and restore the real property in such a manner as not to interfere with the Developer's construction or operation of the Project. 4.6.3. If Hazardous Materials are present on or under the Project right-of-way as a result of any discharge, dumping or spilling on the Project right-of-way during the term of the Contract by any party, including the Developer, other than an agency of the executive branch of State DB4-03.doc "DB4 Page 17 or Federal Government, the Developer shall at the Developer's sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed from the Project right-of-way and transported for final disposal in accordance with all applicable Laws and Regulations, and shall cause the Project right-of-way to be restored to its condition existing prior to such removal (except for the absence of the Hazardous Materials), including, to the extent required, any grading and reinforcement necessary to restore the weight -bearing capacity of the Project right-of-way prior to such event. 4.6.4. The City shall not be responsible for the cost of and the removal or clean-up of Hazardous Materials found in any materials brought to the Project Site, after the Project Site is turned over to the Developer. 4.6.5. The Developer shall provide the City with a written certification that materials or equipment is brought onto the Work site do not contain Hazardous Materials. 4.6.6. The Developer and the City shall cooperate with each other in the prosecution of any claim against or defense of any claims made by third parties in connection with Hazardous Materials present on the Project right-of-way or contiguous properties owed or controlled by the City. 4.7 Traffic Control, Barricading, and Flagging If necessary for the safety of the public, Developer or City employees, the Work shall include design of a complete traffic control plan for all street segments to be improved under this Agreement by a Certified Traffic Control Supervisor and subject to approval of the City, delivery, pickup, installation, maintenance, protection & replacement of damaged device, defective steady burn or flashing beacons, signs, and adjusting the number of channelizing devices and signs as necessary to maintain safe traffic flows for the duration of this project. The traffic control plan and selected devices and signs shall be based on the MUTCD. No additional payments will made to the Developer. 4.7 Developer Representations By executing this Part 2 Agreement, the Developer represents that he/she has visited the site, familiarized him/herself with the local conditions under which the Work is to be performed (including weather conditions which can be expected), and correlated his observations with the requirements of the Contract Documents. ARTICLE 5 BONDS, INDEMNIFICATION AND INSURANCE 5.1 Performance, Payment, and Maintenance Bonds: 5.1.1. Developer shall furnish performance, payment, and maintenance Bonds, each in an amount specified in the Special Conditions as security for the faithful performance and DB4-03.doc "DB4 Page 18 payment of all the Developer's obligations under the Contract Documents. These Bonds shall remain in effect until the job is advertised and closed except for the Maintenance Bond which shall remain in full force and effect for two years from the date of project closure, except as otherwise provided by the Contract Documents. The Developer shall also furnish such other Bonds as are required by the Special Conditions. All Bonds shall be in the forms prescribed by Law or Regulation or by the Contract Documents and be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as Published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All Bonds signed by an agent must be accompanied by a certified co authority to act. py of the 5.1.2. If the surety on any Bond furnished by Developer is declared a bankrupt or becomes insolvent or its right to do business is terminated in any state or it ceases to meet the requirements of paragraph 5.1, Developer shall within five days thereafter substitute another Bond and Surety, both of which must be acceptable to the City. 5.2 Indemnification: The Developer agrees to indemnify insurers, and self-insurance pool, from and against all liability, claims, and demands, on and hold harmless the City, its officers, employees, account of injury, loss, or damage (other than to the project itself), including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, which arise out of or are in any manner connected with this contract, to the extent that such injury, loss, or damage is caused by, negligence, or other fault of the Developer, an Subcontractor is claimed tcontractor of thhe Developer, or athe ny be caused b , y officer, employee, representative, or agent of the Developer or of any Subcontractor of the Developer, or which arises out of any workmen's compensation claim of any employee of the Developer or of any employee of any Subcontractor of the Developer. The Developer agrees to investigate, handle, respond to, and provide defense for and defend against, any such liability, claims or demands at the sole expense of the Developer, The Developer also agrees to bear all other costs and expenses related thereto, including attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, fraudulent. If it is determined jurisdiction that such injby the final judgment of a court of Competent ury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Developer for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 5.3 Developer's Insurance: 5.3.1. The Developer agrees to procure and maintain, at its own expense, a Policies of insurance sufficient to insure against all liability, claims, demands, aPolicy nd other obligations assumed by the Developer pursuant to Section 5.2 above and per the insurance r requirements of this section. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Developer shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 5.2 above by DB4 03 doc Page 19 "0134 reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. 5.3.2. Developer shall procure and maintain, and shall cause any Subcontractor of the Developer to procure and maintain, the minimum insurance coverages listed in the Special Conditions. If the Special Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Developer pursuant to Section 5.2 above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 5.3.2.1. Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self -insured status may be substituted for the Workmen's Compensation requirements of this paragraph. 5.3.2.2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent Developers, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 5.3.2.3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Developer's owned, hired and non - owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Developer has no owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Developer providing services to the City under this contract. 5.2.2.4 Property Insurance upon the Construction at the site in an amount equal to the full replacement cost thereof and to include, at a minimum, the interests of the City, Developer and subcontractors each of whom shall be considered to have an insurable interest and shall be listed as additional insureds; be written on a Builder's Risk "all-risk' or open peril or special causes of loss policy form that shall at least include insurance for physical loss and damage to the Construction, temporary DB4-03.doc "DB4 Page 20 buildings, false work and all materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage, and such other perils or causes of loss as may be specifically required by the Special Conditions; said coverage to also include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); and shall also include coverage to cover materials and equipment stored at the Site or at another location that was agreed to in writing by City prior to being incorporated in the Work, provided such materials and equipment have been included in an Application for payment approved by the City; and shall be maintained in effect until final payment is made. 5.2.2.5. Professional Liability Insurance with minimum limits of not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) each claim 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 Developer. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Developer shall be solely responsible for any deductible losses under any policy required above. 5.3.4. The certificate of insurance provided by the City of Aspen shall be completed by the Developer's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City of Aspen. 5.3.5. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above -described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Developer and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above - described insurance. DB4-03.doc "'DB4 Page 21 The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above -described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Developer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered to the City at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this agreement or thereafter. 5.3.6. Failure on the part of the Developer to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith. All moneys so paid by City shall be repaid by Developer to City upon demand, or City may offset the cost of the premiums against moneys due to Developer from City. 5.3.7. City reserves the 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 I ntergovem mental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Developer for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverage offered by CIRSA. City shall provide Developer reasonable notice of any changes in its membership or participation in CIRSA. 5.4.2. The parties hereto further understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. Further, nothing in the Contract Documents shall be construed or interpreted to require or provide for indemnification of the Developer 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 DB4-03.doc "DB4 Page 22 DEVELOPER'S RESPONSIBILITIES 6.1 General Responsibilities: 6.1.1. Design services required by this Part 2 Agreement shall be performed by qualified architects and other design professionals. The contractual obligations of such professional persons or entities are undertaken and performed in the interest of the Developer. The agreements between Developer and the persons or entities identified in the Part 2 Agreement, and any subsequent modifications, shall be in writing. These agreements, including financial arrangements with respect to this Project, shall be promptly and fully disclosed to the City. 6.1.2. The Developer covenants and warrants that it shall be responsible for performing the Work, and that it shall do or cause to be done the Work and services as required in the Contract Documents and any additional, collateral, and incidental Work and services as may be necessary in order to complete the Project in accordance with the requirements of the Contract Documents, shall be responsible for providing completed Work which meets the results required by the Contract Documents, and shall achieve Substantial Completion (100% of the Work) by the Contract Time. The Developer shall be responsible to City for acts and omissions of the Developer's employees, subcontractors and their agents and employees, and other persons, including Architect and other design professionals, performing any portion of the Developer's obligations under this Part 2 Agreement. 6.1.3. Construction services shall be performed in accordance with those professional standards listed in the Special Conditions and Technical Specifications for quality and scope and shall be performed by the entities and persons, Subcontractors and specific personnel identified in the Developer's Proposal in accordance with their respective degrees of participation provided and represented to City. Other construction services shall be performed by qualified construction Subcontractors and Suppliers, selected and paid by the Developer. Nothing contained in the Contract Documents shall be construed to create any obligation or contractual liability running from the City to any of these persons or entities. 6.1.4. The Developer shall furnish all structural, mechanical, chemical, geotechnical and other laboratory or on -site test inspections and reports as required by law or the Contract Documents. The Developer shall provide an independent testing agency for all soils and materials testing. 6.1.5. The Registered professional engineer of the Developer shall specify all necessary services by land surveyors, geotechnical engineers and other consultants for subsoil, air and water conditions to properly carry out the design and construction services under this Part 2 Agreement. The Developer shall detail this information in its Proposal at the completion of the Part 1 Agreement. The costs of such services shall be borne by the Developer and compensation for such services shall be deemed part of the original Contract Price. 6.1.6. The Developer shall provide all construction surveying, calculating, layout and staking necessary for the construction of all elements of the Work. The Work shall be done under the supervision of a registered land surveyor licensed in Colorado. The Developer DB4-03.doc "DB4 Page 23 shall furnish all personnel, materials, and equipment necessary to perform the required Work, including construction surveying. The cost of all such services shall be bome by Developer and compensation shall be included in the original Contract Price. 6.1.7 All Life Safety Systems and assemblies shall be designed, constructed, and installed in accordance with the current applicable Aspen Fire Protection District requirements: NFPA 13, 13D, 13R as applicable; NFPA 72 (alarm systems); 2003 International Fire Code; all as amended form time to time and applicable at time of building permit submittal. Developer shall also have sole responsibility to ensure the Fire Protection/Sprinkler System is compatible with the water system pressure existing at the project site. 6.1.8. Developer shall be responsible for complying with all local, state and federal rules, laws and regulations applicable to the Work. In particular, Developer shall comply with Section 13.08.110 of Aspen Municipal Code relating to the prohibition against idling vehicles; Section 18.04.040(a)(10) and (11) relating to noise; State Regulation 12, State Regulation 11 Part F and Sections 42-4-412, C.R.S., relating to smoking vehicles; State Regulation No. 3, Part A, Section II.D.1.j relating to fugitive dust; and compliance with all provisions of a Construction Management Plan submitted to the Aspen Community Development Department. 6.2 Supervision and Superintendence: 6.2.1. The Developer shall supervise and direct the Work competently and efficiently devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Developer shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. The Developer shall be responsible to see that the finished Work complies accurately with the Contract Documents. 6.2.2. The Developer shall keep on the Work at all times during its progress a competent resident superintendent, who shall not be replaced without written notice to the City except under extraordinary circumstances. The superintendent will be the Developer's representative at the site and shall have authority to act on behalf of the Developer. All communications given to the superintendent shall be as binding as if given to the Developer. 6.3 Labor, Materials and Equipment: 6.3.1. The Developer shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. The Developer shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or the work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be performed during regular working hours, and the Developer 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 City. DB4-03.doc "DB4 Page 24 6.3.2. Unless otherwise specified in the Special Conditions, the Developer shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work. 6.3.3. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract Documents. If required by the City, the Developer shall furnish satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable Supplier except as otherwise provided in the Contract Documents; but no provision of any such instructions will be effective to assign to the City, or any of the City's consultants, agents or employees, any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of paragraph 9.10.1. or 9.10.2. 6.4. Services and Responsibilities. 6.4.1. Design services required by this Part 2 Agreement shall be performed by qualified architects and other design professionals. The contractual obligations of such professional persons or entities are undertaken and performed in the interests of the Developer. 6.4.2. The agreements between the Developer and the persons or entities in this Part 2 Agreement, and any subsequent modifications, shall be in writing. These agreements, including financial arrangements with respect to the Project, shall be promptly and fully disclosed to the City upon request. 6.4.3. The Developer shall be responsible to the City for acts and omissions of the Developer's employees, subcontractors and their agents and employees, and other persons, including the Architect and other design professionals, performing any portion of the Developer's obligations under this Part 2 Agreement. 6.5. Construction Documents 6.5.1. Based upon the Developer's Proposal, the Developer shall prepare and submit to the City Construction Documents, including Shop Drawings, for review and conformance with the intent of the Developer's Proposal as submitted in conformance with the Part 1 Agreement. 6.5.2. The Construction Documents shall (a) set forth in detail the requirements for the construction of the Work; (b) develop the intent of the Developer's Proposal in greater detail; (c) provide information customarily necessary for the use of those building trades; (d) include documents customarily required for regulatory agency approvals; (a) conform to recognized architectural and engineering standards; and (f) be properly approved and certified by an Architect, registered in the State of Colorado, prior to submittal to the City. DB4-03.doc "DB4 Page 25 6.5.3. The Construction Documents shall be developed by the Developer. The Developer shall develop plans which show details, lines, grades, cross sections, location, and design of all structures and earthwork. The Developer shall supplement the plans with drawings, diagrams, illustrations, samples, schedules, calculations, specifications, and other data which provide details of construction of the Work, illustrate the construction of the Work, material, equipment, fixtures, methods, and items which are necessary to construct the Work, and provide details for inspection of the Work. 6.5.4. The Developer shall be responsible for the accuracy of all dimensions and quantities shown on the Construction Documents. The Developer shall be responsible for confirmation and correlation of all information at the Project site. The Developer shall be responsible for all information that pertains to the fabrication processes and methods of construction. The Developer shall be responsible for providing construction in accordance with the Construction Documents. 6.5.5. The Developer shall submit the Construction Documents to the City for review and approval. The Developer shall make specific notation of any deviations or changes from the Developer's Proposal on the Construction Documents prior to submittal to the City. Submittals shall be made in complete packages and shall include all necessary information to allow the City to review the work depicted in the submittal for conformance to the Developer's Proposal. 6.5.6. The format of the Construction Documents shall be as follows 6.5.6.1. All drawings shall be 34 inches long and 22 inches wide overall. There shall be a title block in the lower right-hand corner of each sheet. The title block shall show the project number, the location of the structure, and the contents of the sheet, The Developer, sheet number, and revision number. 6.5.6.2. Design notes, calculations, lists, reports, descriptions, catalog cuts, and other non -drawing submittals shall be submitted on 8'/2 inch by 11 inch sheets in lieu of the size mentioned above. 6.5.6.3. Three copies of each submittal, plus one reproducible on sepia or vellum for drawings, shall be submitted to the City for review. 6.5.6.4. Prior to submittal to the City for review, the Construction Documents shall be signed and sealed for the Developer, by an Architect registered in the State of Colorado. Also, prior to submittal, the Construction Documents shall be stamped "Approved for Construction" and signed by the Developer's construction superintendent. Submittals without the required seals, stamps, and signatures shall not be accepted and shall be returned to the Developer without action. 6.5.6.5. The City shall review the Construction Documents to determine that general conformance with the design concept and general compliance with the information given in the Contract Documents have been achieved. The review shall not extend to means, methods, techniques, sequences, schemes, or procedures of construction or DB4-03.doe "DB4 Page 26 to safety precautions or to programs incident thereto. The review contemplated by this subsection does not include the normal regulatory review conducted by other City agencies and departments such as the Building Department or City utilities. The review and approval of specific Construction Documents shall not relieve Developer from complete compliance with the terms and conditions of the Contract Documents. 6.5.6.6. Work shall not proceed on items until the Construction Documents for those items have been reviewed and accepted by the City. Work performed prior to the City's review of Construction Documents shall be solely at the Developer's risk. 6.5.6.7. The City may request additional details and require Developer to make changes in the Construction Documents which are necessary to conform to the provisions and intent of the Developer's Proposal without additional costs to the City. 6.5.6.8. After review, the City shall return one set of the Construction Documents to the Developer. Returned Construction Documents shall be stamped with the City's review stamp to indicate the following; Reviewed— Construction Documents have been reviewed and do not require re -submittal. Reviewed as Noted — Construction Documents have been reviewed and the Developer shall incorporate the comments noted in the Construction Documents and Work. The Construction Documents do not require re - submittal. Revise and Resubmit — Construction Documents require correction or re- drawing and shall be resubmitted for review. If Construction Documents are returned for correction or re -drawing, corrections shall be made and the Construction Documents shall be resubmitted by the Developer in the same manner as the first submittal. Specific notation shall be made on the Construction Documents to reflect the revisions. 6.5.6.9. The time required for the City's review of each submittal shall not exceed 15 calendar days after the Construction Documents are received by the City. It is the intent that no more than two submittals shall be required. If, however, additional submittals are required by actions of the Developer, any delays will be the responsibility of the Developer. If additional submittals are required by the City's actions or of Construction Document review is delayed by the City, and if the Developer's critical path activities are delayed by reason of the City's delay in Construction Document review, an extension of time commensurate with the delay in completion of Work thus caused shall be considered. The reviews contemplated by this section shall not include the typical reviews and approvals required of the City's utility department. 6.5.6.10. The Developer shall keep one set of Construction Documents available on the Work site at all times. This set shall be the "construction drawings." The DB4-03.doc "DB4 Page 27 Developer shall note on these construction drawings all changes and deviations from the Work shown on the Construction Documents. The construction drawings shall be kept current as the Work progresses and notations shall be made within seven days of the change or deviation. The construction drawings shall be stamped "As Constructed" and signed by the Developer. Upon completion of the Work and prior to Final payment, the construction drawings shall be submitted to the City. 6.5.6.11. Failure of the Developer to comply with the requirements of this subsection shall be considered to demonstrate unsatisfactory progress, and progress payments may be withheld until the requirements are met. 6.7. Work Schedule 6.7.1. The Developer shall submit to the City for acceptance such schedule of Work progress reports, estimates, records, and other data as the City may require concerning work performed or to be performed. 6.7.2. The Developer shall update the Final Detailed Schedule submitted to City prior to Pre -Construction Conference referenced at Section 2.6, to reflect actual construction progress of all activities prior to each progress payment. The schedule update shall be made to indicate actual dates and durations. A job progress report shall be submitted with each update detailing the description of job progress, problem areas, current and anticipated delaying factors and their anticipated effects, and any corrective actions proposed or taken. 6.7.3. In the event that the rate of actual progress of the Work falls behind the estimated progress indicated on the Final Detailed Schedule, the Developer shall accelerate the Work by placing additional forces and equipment on the project so that the Project will be completed within the Contract Time. The Developer shall be capable and make available more than one work crew to perform the Work on time. 6.7.4. The Developer shall prosecute the Work in accordance with the schedule. Approval of the Developer's progress reports by the City shall not be construed as relieving Developer of his obligation to complete the Work within the Contract Time, or as granting, rejecting, or in any other way, acting on the Developer request for adjustments for completing the Work, or claims for additional compensation. Such requests may be processed in compliance with other provisions of this Agreement. 6.7.5. The cost of schedule preparation, updates and revisions of progress schedules shall not be paid for separately, but shall be included in the original Contract Price. Failure of the Developer to comply with the requirements of this Subsection shall be grounds for a determination by the City that no further progress payments shall be made until the Developer is in full compliance. 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 DB4-03.doc **DB4 Page 28 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 City if sufficient information is submitted by the Developer to allow the City to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted by the City from anyone other than the Developer. If the Developer wishes to furnish or use a substitute item of material or equipment, the Developer shall make written application to the City for acceptance thereof, certifying that the proposed substitute will perform adequately the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified. The application will state that the evaluation and acceptance of the proposed substitute will not prejudice the Developers achievement of Substantial Completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with the City for work on the Project) to adapt the design to the proposed substitute and whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair and replacement service will be indicated. The application will also contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs of redesign and claims of other Developers affected by the resulting change, all of which shall be considered by Architect in evaluating the proposed substitute. The City may require the Developer to furnish at Developers 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 Developer may furnish or utilize a substitute means, method, sequence, technique or procedure of construction acceptable to the City. The procedure for review by the City shall be similar to that provided in paragraph 6.8.1. 6.8.3. The City will be allowed a reasonable time within which to evaluate each proposed substitute. The City will be the sole judge of acceptability, and no substitute will be ordered, installed or utilized without the City's prior written acceptance which will be evidenced by an approved Shop Drawing. The City may require the Developer to furnish at the Developers expense a special performance guarantee or other surety with respect to any substitute. The City will record time required by the City and the City's consultants in evaluating substitutions proposed by the Developer and in making changes in the Contract Documents occasioned thereby. Whether or not the City accepts a proposed substitute, the Developer shall reimburse the City for the charges of the City and the City's consultants for evaluating each proposed substitute. 6.9 Subcontractors, Suppliers and Others: 6.9.1. The Developer shall not employ any Subcontractor, Supplier or other person or organization (including those acceptable to the City as indicated in paragraph 6.9.2), whether initially or as a substitute, against whom the City may have reasonable objection. DB4-03.doc "DB4 Page 29 6.9.2. Developer shall identify all Subcontractors, Suppliers or other persons or organizations including those who are to furnish the principal items of materials and equipment to be submitted to the City in advance of the specified date prior to the Effective Date of this Part 2 Agreement for acceptance by the City and if the Developer has submitted a list thereof, the City's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the bidding documents or the Contract Documents) of any such Subcontractor, Supplier or other person or organization so identified may be revoked on the basis of reasonable objection after due investigation, in which case the Developer shall submit an acceptable substitute, the Contract Price will be increased by the difference in the cost occasioned by such substitution and an appropriate Written Notice of Amendment signed. No acceptance by the City of any such Subcontractor, Supplier or other person or organization shall constitute a waiver of any right of the City to reject Defective Work. 6.9.3. The Developer shall be fully responsible to the City for all acts and omissions of the Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with Developer just as Developer is responsible for Developer's own acts and omissions. Nothing in the Contract Documents shall create any contractual relationship between the City and any such Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor, Supplier or other person or organization except as may otherwise be required by Laws and Regulations. 6.9.4. The divisions and sections of the Specifications and the identifications of any Drawings shall not control the Developer in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. 6.9.5. All Work performed for Developer by a Subcontractor will be pursuant to an appropriate agreement between the Developer and the Subcontractor which specifically binds the Subcontractor to the Applicable terms and conditions of the Contract Documents for the benefit of the City and contain waiver provisions as required by Section 5.3. The Developer shall pay each Subcontractor a just share of any insurance moneys received by the Developer on account of losses. 6.10 Subcontracting and Percentage of Work Awarded to Subcontractor(s): 6.10.1. The Developer may utilize the services of specialty Subcontractors on those parts of the Work, which under normal contracting practices, are performed by specialty Subcontractors. 6.10.2. The Developer shall not award Work to Subcontractor(s), in excess of forty nine percent (49%) of the Contract Price. 6.11 Patent Fees and Royalties: DB4-03.doc "DB4 Page 30 The Developer shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. Developer shall indemnify and hold harmless the City and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorneys fees and court costs) arising out of any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the product or device not specified in the Contract Documents, and shall defend all such claims in connection with any alleged infringement of such rights. 6.12 Permits: Unless otherwise provided in the Special Conditions, the Developer shall obtain and pay for all construction permits and licenses, including those typically issued by the City or Departments of the City. The City shall assist the Developer, when necessary, in obtaining such permits and licenses. The Developer shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of the Effective Date of this Part 2 Agreement. The Developer shall pay all charges of utility owners for connections to the Work, and the City shall pay all charges of such utility owners for capital costs related thereto such as plant investment fees. 6.13 Laws and Regulations: 6.13.1. The Developer shall give all notices and comply with all Laws and Regulations applicable to furnishing and performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, the City shall be responsible for monitoring the Developer's compliance with any Laws or Regulations. 6.13.2. If the Developer observes that the Specifications or Drawings are at variance with any Laws or Regulations, the Developer shall give the City prompt written notice thereof, and any necessary changes will be authorized by one of the methods indicated in paragraph 3.4. If the Developer performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, and without such notice to the City, the Developer shall bear all costs arising therefrom. 6.14 Taxes: The Developer 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 Developer shall not be reimbursed separately for any taxes which may apply except as provided in the Contract Documents and the Developer shall be responsible for all taxes which may apply. The City is tax exempt from Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The City is exempt from such taxes under registration numbers 98-02624. The Developer and its DB4-03.doc •*DB4 Page 31 Subcontractors shall apply to the Colorado Department of Revenue for a Certificate of Exemption indicating that the Developer or Subcontractor's purchase of construction material or building materials is for use in a building, structure, or other public work owned and used by the City. 6.15 Use of Premises: 6.15.1. The Developer shall confine construction equipment, the storage of materials and equipment and the operations of workers to the 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 Developer shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting from the performance of the Work. Should any claim be made against the City by any such owner or occupant because of the performance of the Work, Developer shall promptly settle with such other party by agreement or otherwise resolve the claim by law. The Developer shall, to the fullest extent permitted by Laws and Regulations, indemnify and hold the City harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and other professionals and court costs) arising directly, indirectly or consequentially out of any action, legal or equitable, brought by any such other party against the City to the extent based on a claim arising out of the Developer's performance of the Work. 6.15.2. During the progress of the Work, the Developer shall keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work, the Developer shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by the City. The Developer shall restore to original condition all property not designated for alteration by the Contract Documents. 6.15.3. The Developer shall not load or permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall the Developer subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.16 Record Documents: The Developer shall maintain in a safe place at the site one record copy of all Drawings, Specifications, Addenda, Written Amendments, Change Orders, Work Directive Changes, Field Orders and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings will be available to the City for reference. Upon completion of the Work, these record documents, samples and Shop Drawings will be delivered to the City. 6.17 Safety and Protection: DB4-03.doc "DB4 Page 32 6.17.1. The Developer shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. The Developer shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 6.17.1.1. All employees on the Work and other persons and organizations who may be affected thereby; 6.17.1.2. All the Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and 6.17.1.3. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, road -ways, structures, utilities and Underground Facilities not designated for removal, relocation or replacement in the course of construction. The Developer shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. The Developer shall notify owners of adjacent property and of Underground Facilities and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property referred to in paragraph 6.17.1.2 or 6.17.1.3 caused, directly or indirectly, in whole or in part, by the Developer, any Subcontractor, Supplier or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, shall be remedied by the Developer. The Developer's duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and the City has issued a notice to the Developer in accordance with Section 14.5 that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.17.2. The Developer shall designate a person competent in OSHA safety related matters at the site at all times during construction whose duty shall be the prevention of accidents including confined space entry and work in the confined spaces. 6.18 Emergencies: In emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, the Developer, without special instruction or authorization from the City, is obligated to act to prevent threatened damage, injury or loss. The Developer shall give the City prompt written notice if the Developer believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. If the City determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a written order will be issued to document the consequences of the changes or variations. Emergency phone calls placed to a number provided by DB4-03.doe '•DB4 Page 33 Developer must be responded to in 15 minutes or less and action must be taken on the emergency condition immediately. Such emergency calls shall be project related corrective and restorative work and shall be considered subsidiary to the construction bid items and at the Contractor's cost. The Owner may initiate such corrective work at Contractor's cost if the Contractor fails to perform the required task within one hour of an emergency call. 6.19 Illegal Aliens — CRS 8-17.5-101 & 24-76.5-101. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Contract. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. C. By signing this document, Contractor certifies and represents that at this time: and (i) Contractor does not knowingly employ or contract with an illegal alien; (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. Contractor hereby certifies that: (i) Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. DB4-03.doc "DB4 Page 34 (ii) Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (iii) Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Contractor shall not use the Basic Pilot Program procedures to undertake pre -employment screening of job applicants while the Public Contract for Services is being performed. (v) If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (1) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. DB4-03.doe "DB4 Page 35 (vii) If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8-17.5-102, C.R.S. (ix) If Contractor operates as a sole proprietor, Contractor hereby swears or affirms under penalty of perjury that the Contractor (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24- 76.5-103 prior to the effective date of this Agreement. 6.20 Mechanics' Liens: 6.20.1. The Developer covenants and agrees that, to the extent permitted by law, no claims or mechanics' liens against public funds (mechanic's liens) or claims of any kind, will be permitted to arise, be filed or maintained against the Project or any part of it, any interest in it or any improvements on it, against any moneys due or to become due from the City to the Developer, for or on account of any work, labor, services, materials, equipment or other items performed or furnished for or in connection with the Project, and the Developer for itself, its Subcontractors, laborers and material suppliers and employees does waive, release and relinquish these claims or liens and all rights to file or maintain these liens and agrees further that this waiver of liens and waiver of the right to file or maintain liens shall be independent covenant and shall apply also to work, labor, services performed, materials, equipment and other items furnished under any Change Order or supplemental agreement for extra or additional work in connection with the Project. The Developer agrees to defend, indemnify, protect and save harmless the City from and against any and all claims or liens and actions brought or judgments rendered, and from and against any and all loss, damages, liability, costs and expenses, including legal fees and disbursements, which the City may sustain or incur in connection with the Project. 6.20.2. The Developer also agrees as above for all of its Subcontractors, including but not limited to suppliers and employees. If any of the Developer's Subcontractors, suppliers, employees or any other person directly or indirectly acting for, through or under its authority or any of them files or maintains a lien or claim as described above, the Developer agrees to cause claims or liens to be satisfied, removed or discharged at its own expense by bond, payment or otherwise within thirty (30) consecutive calendar days from the date of the filing, and upon the Developer's failure to do so the City shall have the right, in addition to all other rights and remedies provided under this Contract or by law, to cause the liens or claims to be satisfied, removed or discharged by whatever means the City chooses, at the entire cost and expense of the Developer, the expense to include legal fees and disbursements. The Developer shall give a copy of Claim Release form to all Subcontractors and suppliers and shall include these provisions in all written contracts with Subcontractors, or give written DB4-03.doc "DB4 Page 36 notice to all Subcontractors, suppliers or other persons having oral agreements with the Developer. 6.20.3. The Developer agrees that moneys received for the performance of this Contract shall be used first for payment due for labor, material, and services for the Project and taxes, and the moneys shall not be diverted to satisfy obligations of the Developer on other accounts or contracts. The Developer shall pay Subcontractors within ten (10) consecutive calendar days of receipt of a progress payment from the City. The Developer shall furnish sworn affidavits in accordance with the form furnished by the City, which shall state that amounts due or to become due, amounts paid, and any other information necessary to indicate the financial condition of the Developer, insofar as it relates to services, labor and material furnished, and to be furnished, under this Contract. The City may take steps it may deem necessary to protect itself against any claims. 6.21 Continuing the Work: The Developer shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted herein or as the Developer and the City may otherwise agree in writing. 6.22 Developer Facilities: All temporary Developer facilities shall be in accordance with regulations and codes governing such construction. The types of temporary construction facilities required for the Project may include, but are not necessarily limited to, the following: (a) job site office space, (b) construction water distribution, (c) temporary closures, (d) temporary heat, (e) hoists and temporary cranes, (f) temporary roads and paving, (g) construction aids and miscellaneous facilities, (h) temporary power distribution, (i) temporary lighting, 0) temporary toilet facilities. All operations of the Developer, including storage of materials, upon the City's premises shall be confined to areas authorized or approved by Owner in writing. Temporary buildings, storage sheds, shops, offices, may be erected by the Developer only with the written approval of the City and shall be built or provided with labor and materials furnished by the Developer without additional expense to the City. Such temporary buildings and utilities shall remain the property of the Developer and shall be removed by it at its expense upon completion of the Work. ARTICLE 7 OTHER WORK 7.1 Related Work at Site: DB4-03.doc "DB4 Page 37 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 therefore which shall contain General Conditions similar to the provisions contained in this Part 2 Agreement. The Developer shall perform and coordinate his/her activities with other Developers to avoid conflict and minimize disruptions. 7.1.2. The Developer shall afford each utility owner and other Developer who is a party to such a direct contract (or the City if the City is performing the additional work with the City's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work, and shall properly connect and coordinate the Work with theirs. The Developer shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. The Developer shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of Architect and the others whose work will be affected. The duties and responsibilities of Developer under this paragraph are for the benefit of such utility owners and other Developers to the extent that there are comparable provisions for the benefit of the Developer in said direct contracts between the City and such utility owners and other Developers. 7.1.3. If any part of the Developer's Work depends for proper execution or results upon the work of any such other Developer or utility owner (or the City), the Developer shall inspect and promptly report to the City in writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results. The Developer's failure to report such conditions will constitute an acceptance of the other work as fit and proper for integration with the Developer's Work except for latent or non -apparent defects and deficiencies in the other work. 7.2 Coordination: If the City contracts with others for the performance of other work on the Project at the site, the person or organization of the activities among the various prime Developers may be identified in the Special Conditions, and the specific matters to be covered by such authority and responsibility may be itemized, and the extent of such authority and responsibilities may be provided, in the Special Conditions. Unless otherwise provided in the Special Conditions, neither the City nor the City shall have any authority or responsibility in respect of such coordination. ARTICLE 8 CITY'S RESPONSIBILITIES 8.1. The City shall issue all communications to the Developer through the City's Representative or his/her designated person. 13134-01doc "13134 Page 38 8.2. The City shall furnish the data required of the City under the Contract Documents promptly and shall make payments to the Developer through processing of the monthly Progress Pay Estimate forms within 10 days from the cut-off date for a pay estimate form. 8.3. The City represents that an amount of money equal to the Contract Price has been duly appropriated in accordance with the Municipal Code of the City of Aspen, under a purchase order. The City shall not issue any Change Order or execute a Written Amendment requiring additional compensable work, which work causes the aggregate amount appropriated by the City, unless the Developer is given a written assurance that a lawful appropriations to cover the costs of the additional work shall be made. ARTICLE 9 CITY'S REPRESENTATIVE STATUS DURING CONSTRUCTION 9.1 City's Representative: The City's Representative shall be identified to the Developer prior to the commencement of any Work. The duties and responsibilities and the limitations of authority of the City's Representative during construction are set forth in the Contract Documents and shall not be extended without written consent of the City. 9.2 Visits to Site: The City's Representative shall make visits to the site at intervals appropriate to the various stages of construction to observe the progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with the Contract Documents. The City's Representative shall make on -site inspections to observe the quality or quantity of the Work. The City's Representative's efforts will be directed toward providing for the City a greater degree of confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on -site observations, the City's Representative will keep the City informed of the progress of the Work and will endeavor to guard the City against defects and deficiencies in the Work. 9.3 Reserved 9.4 Clarification and Interpretations: The City's Representative will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract Documents (in the form of Drawings or otherwise) as the City's Representative may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. If a written clarification or interpretation justifies an increase in the Contract Price or an extension of the Contract Time, the Developer shall meet with the City's Representative and resolve the issue. All such requests or claims shall be submitted to the City's Representative. DB4-03.doc "DB4 Page 39 9.5 Authorized Variations in Work and Minor Contract Revisions: The City's Representative may request or authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a written request or a field order and will be binding on the City, and also on the Developer who shall perform the Work involved promptly. If the Developer believes that a field order justifies an extension of the Contract Time and the parties are unable to agree as to the extent thereof, the Developer may make a claim therefore as provided herein. 9.6 Rejecting Defective Work: The City's Representative will have authority to disapprove or reject Work which the City's Representative believes to be Defective, and will also have authority to require special inspection or testing of the Work as provided herein below, whether or not the Work is fabricated, installed or completed. 9.T Shop Drawings, Change Orders and Payments: 9.7.1. In connection with the City's Representative's responsibility for Shop Drawings and Samples, see paragraphs 6.19.1. through 6.20.1. inclusive. 9.7.2. In connection with the City's Representative's responsibilities as to Change Orders, see Article 10 and Article 11. 9.7.3. In connection with the City's Representative's responsibilities in respect of request for Payment, etc., see Article 14. 9.8. Decisions on Disputes: 9.8.1. The City's Representative will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. Claims, disputes and other matters raised by Developer relating to the acceptability of the Work or the interpretation of the requirements of the Contract Documents pertaining to the performance and furnishing of the Work and claims under Articles 11 and 12 in respect to changes in the Contract Price or Contract Time shall be referred initially to the City's Representative in writing with a request for a formal decision in accordance with this paragraph, which the City's Representative will render in writing within a reasonable time. Written notice of each such claim, dispute and other matter by the Developer will be delivered to the City's Representative promptly (but in no event later than thirty days) after the occurrence of the event giving rise thereto, and written supporting data will be submitted to the City's Representative and the City within sixty days after such occurrence unless the City's Representative allows an additional period of time to ascertain more accurate data in support of the claim. DB4-03.doc "DB4 Page 40 9.8.2. The rendering of a decision by the City's Representative pursuant to paragraph 9.8.1. with respect to any such claim, dispute or other matter shall be a condition precedent to any exercise by the Developer of such rights or remedies as the Developer may otherwise have under the Contract Documents or by Laws or Regulations in respect of any such claim, dispute or other matter. The City shall not be bound by any initial interpretation by the City's Representative of the requirements of the Contract Documents, judgment on the acceptability of the Work thereunder, or formal decision made by the City's Representative in accordance with paragraph 9.8.1. Any dispute not resolved by the initial decision of the City's Representative shall be decided by the City, who shall reduce the decision in writing and furnish a copy thereof to the Developer and the City's Representative. The decision of the City shall be final subject to review by the Pitkin County District Court in Pitkin County, Colorado. Pending final decision of a dispute hereunder, the Developer shall proceed diligently with the performance of the Work and in accordance with the City's Representative's interpretation. 9.9 Reserved 9.10 Limitations on City's Representative's Responsibilities: 9.10.1. Neither the City's Representative's authority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made by the City's Representative in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the City's Representative to the Developer, any Subcontractor, any Supplier, or any other person or organization performing any of the Work, or to any surety for any of them. 9.10.2. Whenever in the Contract Documents the terms "as ordered", "as directed", "as required", "as allowed", "as approved" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review or judgment of the City's Representative as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective shall not be effective to assign to the City's Representative any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the Contract Documents. ARTICLE 10 CHANGES IN THE WORK 10.1 City Initiated Changes 10.1.1. The City may require, without notification to sureties, the Developer to perform changes, additions or deletions to the Work at anytime after execution of the Contract DB4-03.doc "'DB4 Page 41 without invalidating the Contract. Changes shall be accomplished as set forth in Section 3.2, above. 10.1.2. The Developer shall promptly perform changes in the Work in accordance with applicable provisions of the Contract Documents, unless otherwise provided in a Change Order or Amendment to this Part 2 Agreement. 10.1.3. The following procedure shall be followed for the City notifying the Developer of proposed City initiated changes. The City's Representative shall issue a notice informing the Developer of a planned change in the Work and its scope, and requesting the Developer's detailed price proposal. The Developer, at no expense to the City, shall submit a priced proposal for performing the proposed change in the Work. The Developer, within ten (10) consecutive calendar days after receiving the Notice of Change, or such longer time which the City's Representative in his/her discretion has granted, shall provide the City's Representative with a complete and itemized proposal which includes the estimated increase or decrease in the Contract Price and/or in the Contract Time attributable to the planned changes on the criteria and methods described in Article 11. The Developer shall be responsible for delays to the Work and any additional costs incurred by the City caused by its failure to submit complete pricing information within the time provided above. The Developer shall participate with the City in prompt joint analysis and negotiations to finalize a Change Order, if necessary. 10.2 Written Notice of Change 10.2.1. A Written Notice of Change may be used when a) The City determines that the Developer must proceed immediately to perform a change in the Work in order to avoid an adverse impact on the schedule or other unchanged Work, and sufficient time is not available to negotiate an adjustment to the Contract Price or Contract Time; or b) The City and Developer have not completed their negotiation and reached agreement on all of the terms of a Change Order, but the City requires the Developer to proceed without such agreement. 10.2.2. Upon receipt of a Written Notice of Change the Developer shall promptly proceed with performing the change in the Work. Additionally, the Developer shall comply with all the requirements of 10.3 of this Part 2 Agreement. 10.3 Change Order When the Developer and the City reach agreement on the adjustments to the Contract Price and/or Contract Time, such agreements shall be promptly recorded in an executed Change Order. 10.4 Developer Change Request DB4-03.doc "DB4 Page 42 10.41. If the Developer: (i) receives any oral or written instructions, directives or interpretations of Contract Documents, or determinations from the City or, (ii) identifies what it believes are design errors or omissions in the Contract Drawings or Specifications, or (iii) encounters a differing site condition; or, (iv) is delayed in the progress of the Work; or, (v) becomes aware of any other matter or circumstance which it believes would require a change in the Contract Price or Contract Time, the Developer shall give the City prompt written notice of such matters in a letter or notice denominated "Developer Change Request'. 10.4.2. All Developer Change Requests shall be dated, numbered sequentially, and shall describe the action or event which the Developer believes may require an extension in time or price. The Developer shall also provide descriptions of possible Developer actions or solutions to minimize the cost of the Developer Change Request and, provide an estimate of the adjustment in the Contract Price and/or Contract Time which it believes is appropriate. 10.4.3. With respect to orders, instructions, directives, interpretations, determinations, or the discovery of any errors or omissions in the Contract Documents, a Developer Change Request shall be submitted before the Developer acts on them, but in no event more than ten (10) consecutive calendar days after they were received or discovered. 10.8.4. With respect to any differing site conditions, a Developer Change Request shall be submitted before the conditions are disturbed, but in no event more than ten (10) consecutive calendar days after the conditions are first discovered. 10.4.5. With respect to delays, a Developer Change Request shall be submitted as soon as the Developer has knowledge of the delay, but in no event more than ten (10) consecutive calendar days therefrom. 10.4.6. With respect to any matters or circumstance which the Developer believes would require a change, including delays, a Developer Change Request shall be submitted as soon as the Developer has knowledge of the matter or circumstance, but in no event more than ten (10) consecutive calendar days after the Developer becomes aware of such circumstance or matter. 10.5 Down Time: The Developer may be granted time extension for down time. No other compensation of any kind shall be made to the Developer for down time. Equipment failure, lack of adequate labor or tools or materials to perform the Work shall not constitute down time. Weather delays that can reasonably be anticipated shall not constitute grounds for obtaining a time extension. 10.6 Submittal Requirements and Waiver of Claims 10.6.1. If the Developer does not submit a Developer Change Request within the time required above, any action by the Developer related to such order, direction, instruction, interpretation, determination, design error or omission, or other matter, including delays or DB4-03.doc **DB4 Page 43 differing site conditions, will not be considered by the City as a change to the Work and the Developer waives any claim for an adjustment on the Contract Price or the Contract Time. 10.6.2. The Developer shall, within ten (10) consecutive calendar days submit in detail, a Developer Change Request, and provide the City a complete and itemized proposal which contains the information described in Article 11. The proposal shall also contain a detailed explanation, citing all applicable provisions in the Contract Documents, which supports the Developer Change Request. If the Developer does not submit its itemized proposal within the time described above or within such extension which the City, in his/her discretion may have granted in writing, it waives any claim for an adjustment in the Contract Price or Contract Time arising out of the act or event described in the Contract Change Request. 10.6.3. If a Developer Change Request is denied by the City, in whole or in part, any claim for an increase in the Contract Price or Contract Time arising out of the act or event described in the Developer Change Request is waived unless the Developer timely complies with the provisions of paragraphs 10.4.1. through 10.4.6. ARTICLE 11 CHANGE OF CONTRACT PRICE OR CONTRACT TIME 11.1 Contract Price Adjustments. All adjustments to the Contract Price shall be determined by using one or more of the following methods: 11.1.1 A negotiated lump sum for work items. The Developer shall promptly provide suffi- cient substantiating data, including calculations, measurements, cost records, production rates, equipment types and capacity, labor costs by craft and other information which the City may reasonably require the Developer to produce in order to permit the City to evaluate the Developer's lump sum change order proposals. In pricing this proposal, the Developer shall include estimates of the type of costs described in Section 11.4 below. 11.1.2 Unit prices stated in the Contract Documents or subsequently agreed upon multiplied by final verified quantities of work performed; 11.1.3 Cost to be determined in a manner agreed upon by the parties which includes markups that do not exceed those set forth in Section 11.4 below. 11.1.4 Costs to be determined in the manner described in Section 11.3.1 11.2 Contract Time Adjustments. DB4-03.doc "DB4 Page 44 11.2.1. Any extension of the Contract Time must be requested in a Developer Change Request which complies with all of the requirements of paragraphs 10.4.1 through 10.4.6. Failure to strictly comply with the timing and submittal requirements shall constitute a waiver of any request or claim. 11.2.2. If the Developer is delayed at any time in the progress of the Work and such delay was caused, in whole or in part, by the act or omission of the City, or by changes ordered in the Work pursuant to strikes, lockouts, fire, unusual delay by common carriers, unavoidable casualties, or any other causes beyond the Developer's control, then the Contract Time shall be extended by the City. Such 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 Developer and did not result from the acts or omissions of the Developer and, provided further, that they Developer has taken reasonable actions to mitigate or prevent further delays resulting from such causes. 11.2.3. If abnormal weather conditions are the basis for a claim for an extension of the Contract Time, such claim shall be documented on the Developer's Daily Construction Log forms substantiating that weather conditions were unusually severe for the period of time, and could not have been reasonably anticipated. Regardless of actual weather conditions, any day in which the Developer is able to work sixty percent (60%) or more of its scheduled work force shall not be counted as an abnormal weather day for purposes of calculating weather related time extensions. Developer acknowledges and accepts all risks associated with construction activities to be undertaken at the Work site, including weather conditions that can be reasonably anticipated at the Work site. 11.2.4. The Developer agrees that delays resulting from any causes other than acts or omissions of the City, its employees, agents or officials shall be considered fully compensated by a time extension only and agrees to make no claim for monetary damages for such delays. In no event shall the Developer be entitled to recover any delay costs caused by the acts or omissions of the Developer, its employees or agents. 11.2.5. If the Developer believes that it has suffered delays in performing the Work that are caused by acts or omissions of the City, the Developer may submit a Developer Change Request with detailed justifications acceptable to the City. Typical delays in obtaining permits, inspections, approvals, tests, or similar action from City utilities, Building Department or other City controlled department or agency shall not be deemed to be caused by the City. Developer represents that the time needed for all such permits, inspections, approvals, tests, or similar actions is included in the Final Detailed Schedule and the Contract Time. Failure of the Developer to comply with all requirements shall constitute a waiver of any claim for damages resulting from such delays. 11.3 Force Account Work. D84-03.doc "DB4 Page 45 11.3.1 In situations where the cost or time for performing a required change cannot be adequately defined or agreed upon but the changed Work must proceed, the City may direct the Developer to perform the Work on a Force Account basis. Adjustment shall be determined on the basis of reasonable expenditures and savings of those performing the change in the Work including, in case of an increase in the Contract Amount, an allowance for overhead and profit which shall not exceed the allowance described in 11.4.7 below. In such case, the Developer shall keep and present, in such form as the City may prescribe, an itemized detailed accounting together with appropriate supporting data of all of the costs described in Section 11.4.1 through Section 11.4.4 which clearly distinguishes the cost of changed Work from base contract Work. Information which shall be required on these forms includes an itemization of all costs for labor, materials and equipment rental and total costs to date for force account work. The Developer shall include hours worked, rates of pay, names and job classifications for all workers and size, type, identification number, rental rate and hours of operation for equipment. 11.3.2 Unless otherwise provided in the Contract Documents, costs for the purposes of Force Account Work shall be itemized daily on Daily Force Account Forms provided by the City which are signed by the Developer and the City. Such costs shall form the basis for determining the maximum amount to be paid the Developer, but this amount may be reduced where necessary to take into account the cost of base contract Work, Work included in approved Change Orders, Work described in Work Directive Changes, idle time for workers and/or equipment when work could have been performed in other locations or the number of workers or amount of equipment provided exceeds the number or amount required to perform the Work, unsatisfactory Work or Work which may be performed concurrently with the changed Work and which cannot be easily segregated from the changed Work. The worker hours, equipment hours, and materials installed shall be logged on the City's Daily Construction Log form for every day the work is performed. 11.4 Contract Sum Determination 11.4 In no event shall the charge or credit to the City associated with any change exceed the sum of the following: 11.4.1 Direct Labor. Net direct increase or decrease in the cost of the Developer's labor for all work associated with the change in accordance with the labor rates established in Exhibit _. Developer's labor shall be limited to Davis -Bacon Act work categories or other labor (including salaried field personnel) that perform the individual change in Work full-time. For shop work, the direct labor includes workers who work directly on the item being manufactured or operators of equipment being used to handle items being manufactured. 11.4.2 Labor Burden. Developer's actual costs for worker's compensation and liability insurance, payroll taxes, social security and employees fringe benefits (including employer paid health insurance) imposed on the basis of payrolls. This burden must reflect the variability of some burdens, i.e., social security. The burden shall include all small tools which cost less than $200 apiece. The labor burden shall be included in the rates set forth in section 11.4.1 above. D84-03.doc "D134 Page 46 11.4.3 Direct Material, Supplies, Installed Equipment. Actual net direct cost of materials, supplies, small tools, and equipment incorporated in or consumed by the Work. If actual costs are not available, the cost shall be the lowest commercially available price including all discounts and rebates and all applicable taxes. Cost shall be based on buying the material, supplies and equipment in the largest practical quantity to receive quantity discounts. 11.4.4 Equipment. Actual net cost to the Developer of owned and/or rented equipment other than small tools, to be determined using the following method(s): (1) Owned equipment operating costs shall be per the rates established in Exhibit B. (2) Rental equipment costs shall be determined using actual invoiced rates less all discounts for bare equipment rental. Operating costs will be determined based on rates in the above -cited C.O.E. manual. (3) Mobilization/demobilization costs will be paid if the equipment is mobilized exclusively for Work described in a change requested by the City or a Change Order. If the equipment is used on base contract work, no mobilization or demobilization cost will be paid. Mobilization/demobilization cost will be based on using the least expensive means to mobilize or demobilize. Equipment shall be obtained from the nearest available source. When the least expensive methods are used, then costs shown in the actual invoice will be the basis for pricing. 11.4.5 Bonds, Insurance. Permits and Taxes. Actual increases or decreases in the cost of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work. 11.4.6 Subcontract Costs. Net cost of Subcontractor work at any tier, provided that the cost of the Subcontractor is determined in accordance with the above requirements. When possible, the Developer shall obtain quotes from two or more Subcontractors. 11.4.7 Overhead and Profit. (1) Ten percent (10%) of the sum of Section 11.4.1 through Section 11.4.5 above, to cover a profit for Work performed. (2) Two percent (2%) of Section 11.4.6 above to cover Developer's and Subcontractor's overhead and profit for work performed. (3) Neither the Developer nor any Subcontractor, nor the City in the case of a credit, will attempt to apply these percentage adjustments in a way which would pyramid either the cost or credit because a Subcontractor or Subcontractors at any tier are involved, except that both the Developer and Subcontractor shall be entitled to a percentage for Overhead and Profit. DB4-03.doc "1384 Page 47 11.4.8 Totals as Equitable Adjustment. The Developer agrees that the total of the above constitutes an equitable adjustment for any and all damages resulting from a change or due to delay or disruption caused by the City. The Developer's choice of idling and Down Time shall not constitute a City's cause for delay or disruption. 11.5 Cost and Pricing Data 11.5.1 Certificate of Current Cost or Pricing Data. The Developer shall submit a Certificate of Current Cost or Pricing Data with any agreed upon Contract Price adjustment, but prior to the execution of a Change Order for the work, in the following format: 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 supporting any advance agreements and forward pricing rate agreements between the offer 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 Developer shall submit in support of all items which are not unit prices or lump sum prices established by the Contract, statements by the affected vendors that the prices are not in excess of those previously charged to the City or the supplier's regular commercial customers for the same items. 11.5.3 Price Reductions for Defective Costs or Pricing Data. If it is later determined that pricing adjustments to the Contract were not correct due to incomplete or inaccurate pricing data by the Developer or any Subcontractor or supplier or that lower prices were readily available, the price shall be reduced accordingly and the Contract modified by a Change Order. DB4-03.doc **DB4 Page 48 11.6 Variation in Quantity of Unit Priced Items: Where the quantity of a unit -priced item in this Contract is an estimated quantity and the actual quantity of the unit -priced item varies more than 25 percent above or below the estimated quantity, an equitable adjustment in the Contract Price may be made by a written Change approved by the Developer and the City. The equitable adjustment shall be based upon any increase or decrease in cost due solely to the variation above 125 percent or below 75 percent of the estimated quantity. The City at any time after the award of the Contract, may delete Bid items, provided that the total of such deletions does not exceed twenty five percent (25%) of the total Contract Price, and such deletions will not justify an increase in other Bid prices. If the quantity variation is such as to cause an increase in the time necessary for completing the Work the Developer may request in writing, an extension of time only. ARTICLE 12 COMPENSATION 12.1 The initial payment provided below shall be made upon execution of this Part 2 Agreement and credited to City's account. 12.2 Subsequent payments for Basic Services and Additional Services provided for in this Part 2 Agreement shall be made as set forth in Article 14. 12.3 Payments due the Developer under this Part 2 Agreement which are not paid when due shall bear interest from the date due at the rate of 2%. 12.4 The City shall compensate the Developer in accordance with this Article and the other provisions of this Part 2 Agreement as described below: 12.4.1 FOR BASIC SERVICES, compensation shall be as follows: City shall pay Developer a lump sum amount of $ 2,030,107. 12.4.2AN INITIAL PAYMENT of fifteen thousand, three hundred Dollars ($ 15,300. ) shall be made upon execution of this Part 2 Agreement and credited to the Developer's account. 12.4.4 FOR ADDITIONAL SERVICES, compensation shall be as follows: An agreed upon Lump Sum Amount or per the Change Order provisions of this Agreement if a Lump Sum Payment cannot be agreed upon before the start of any additional services. DB4-03.doe "DB4 Page 49 ARTICLE 13 WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.1 Warranty. 13.1.1. The Contractor warrants and guarantees to City that all Work, whether supplied, furnished, installed, provided, or performed by Contractor, a Subcontractor, or Supplier, will be in accordance with the Contract Documents and will not be Defective. All Defective Work, whether or not in place, must be rejected, corrected or accepted as provided in this Article 13. Work shall be performed in a skillful and workmanlike manner. Except where longer periods of warranty are indicated for certain items, Contractor warrants Work, whether furnished, installed, provided, performed or supplied by Contractor, a Subcontractor or Supplier, to be free from faulty materials and workmanship for a period of not less than one year from date of Substantial Completion, which one year period shall be covered by the Maintenance Bond and Payment Bond as specified in the Contract Documents. Landscaping replacement shall be warranted for two growing seasons. 13.1.2. The Developer, at no additional expense to the City, shall remedy damage to equipment, the site, or the buildings or the contents thereof which is the result of any failure or defect in the Work, and restore any work damaged in fulfilling the requirements of the Contract Documents. 13.1.3. With respect to all warranties, express or implied, from Subcontractors, manufacturers, or Suppliers for Work performed and materials furnished under the Agreement, the Developer shall: 13.1.3.1. Obtain all warranties that would be given in normal commercial practice. To the extent that the Subcontractor's, manufacturer's, or Suppliers, standard warranty exceeds the minimum City requirements as set forth in this Article or elsewhere in the Contract Documents, the Subcontractors, manufacturers, or Suppliers standard warranty shall apply. Otherwise, the Developer shall be responsible for a two year term under the Maintenance Bond. 13.1.3.2. Require all warranties to be executed, in writing, for the benefit of the City, if directed by the City; or 13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the City. 13.1.3.4. Assign all warranties and guarantees in writing to the City upon the request of the City. 13.1.4. Notwithstanding anything to the contrary above, the Developer shall warrant that all equipment which are incorporated into the Work or any subsystem shall be new, free from liens and defects in design, have clear title, be free from faulty materials and workmanship, D84-03.doc "13134 Page 50 and shall conform in all aspects to the terms of the Contract Documents, to the drawings issued for manufacture by the Developer, and shall be in conformance with the Technical Specifications and Developer's Proposal (except in those instances where the Developer's Proposal has been amended by subsequent Technical Specifications). Unless the warranty period is otherwise extended or modified, the following warranty shall apply. If within five (5) years from the date each piece of equipment incorporated into the Work or any subsystem is accepted by the City, it appears that the equipment or any part thereof does not conform to the above warranty and guarantee provisions, and the City so notifies the Developer within a reasonable time after its discovery, the Developer shall thereupon promptly correct such nonconformity to the satisfaction of the City, at the Developer's sole expense; failing which the City may reject the item and cover by purchasing substitute items or the City may proceed to make corrections or accomplish the Developer's performance by the most expeditious means available, the cost of cover or correction shall be charged to the Developer. 13.1.4.1. The preservation, packaging, packing, and marking, and the preparation for, and method of, shipment of such equipment shall conform with the requirements of the Contract Documents. 13.1.4.2. When return, corrections, or replacement is required, transportation charges and responsibility for the supplies and equipment while in transit shall be borne by the Developer. 13.1.5. In addition to the foregoing, in the event that any single component in the Work experiences failures during the warranty period such that the number of failures under normal service conditions exceeds ten percent (10%) of the Work population of that component, the Developer shall perform a design defects analysis. If the analysis shows the component design to be defective, the component shall be redesigned, and the entire population of that component shall be replaced and/or retrofitted. 13.1.6. Whenever there is a conflict between the warranties required by the Contract Documents and the warranty provided by a Subcontractor, manufacturer or Supplier, the terms and conditions of the warranty that affords the City the greatest protection shall be binding upon the Developer. 13.1.7. The above warranties or other warranties agreed to by Developer shall not limit the City's rights under other provisions of this Article with respect to latent defects, gross mistakes, or fraud. 13.1.8. Neither the foregoing nor any provision in the Contract Documents, nor any special guarantee time limit, shall be held to limit the Developer's liability for defects, to less than the legal limit of liability in accordance with the law of the place of building. 13.1.9. Any supplies or equipment, or parts thereof, corrected or furnished in replacement under this Article, shall also be subject to the terms of the warranty provisions herein to the same extent as supplies and equipment initially delivered. The warranty, with respect to supplies, equipment, or parts thereof, shall be equal in duration as if initially delivered and DB4-03.doc "DB4 Page 51 shall run from the date of delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever is later. 13.1.10. At the City's discretion, a warranty inspection will be held during sixty (60) calendar days prior to the expiration of the warranty period under the Maintenance Bond. The Developer shall provide an authorized representative at such inspection to represent the Developer's interests. All defects identified during inspection shall be corrected at Developer's expense at the direction of the City immediately. Corrective Work shall be commenced within five (5) consecutive calendar days after written notice to Developer. 13.1.11. Developer shall provide the homeowner of every unit with copies of all warranty documentation for equipment, supplies, or parts thereof, incorporated into the units. 13.1.12. Developer shall identify a single person designated as the person responsible for accepting communications from unit homeowners to address all warranty issues with respect to the construction of the units and equipment and supplies incorporated within the units. The person so designated shall be responsible for addressing all such inquiries, complaints, or notices of defective work, equipment or supplies within individual homeowner units. 13.2 Access to Work: The City, other representatives of the City, testing agencies and governmental agencies with jurisdictional interests shall have access to the Work, at any time for their observation, inspecting and testing. Developer shall provide proper and safe conditions for such access. 13.3 Tests and Inspections: 13.3.1. The Developer shall cooperate with material testing persons and firms, and for required inspections, and compliance and approval tests for the Work performed by the Developer or his/her Subcontractor(s). 13.3.2. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically be inspected, tested or approved, the Developer shall assume full responsibility therefore, pay all costs in connection therewith and furnish the City the required certificates of inspection, testing or approval. The Developer shall also be responsible for and shall pay all costs in connection with any inspection or Re -testing required in connection with the City's acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to The Developer's purchase thereof for incorporation in the Work. The cost of all inspections, testing, re -testing and approvals in addition to the above which are required by the Contract Documents shall be paid by the Developer (unless otherwise specified). The City will conduct and pay for the conformance tests on materials installed in - place, and the Developer shall pay for re -testing of all failing and non -conforming materials thereafter. D134-01doc "DB4 Page 52 13.3.3. All inspections, tests or approvals other than those required by Laws or Regulations of any public body having jurisdiction shall be performed by professional firms or certified materials laboratories acceptable to the City. 13.3.4. If any Work (including the work of others) that is to be inspected, tested or approved is covered without written concurrence of the City, it must, be uncovered for observation. Such uncovering and testing when required by the City shall be at the Developer's expense. 13.3.5. Neither observations by the City nor inspections, tests or approvals by others shall relieve the Developer from the Developer's obligations to perform the Work in accordance with the Contract Documents. 13.3.6. All materials to be incorporated into the Work may be subject to sampling, testing by the Developer, and approval and samples furnished shall be representative of the material to be used. Tests required to guard against unsuitable materials or defective workmanship and to demonstrate that materials comply with the provisions of the Contract Documents shall be paid for by the Developer. The procedures and methods used to sample and test materials shall be as specified or as determined by the City. Unless otherwise specified, samples and test shall be made in accordance with the latest standard methods of ASTM, AWWA, AASHTO, and CDOT's 1991 edition of Standard Specifications for Road and Bridge Construction. The Developer shall furnish at least one copy of test results to the City. 13.4 Uncovering Work. 13.4.1. If any Work is covered contrary to the written request of the City it must, if requested by the City, be uncovered for the City's observation and replaced at the Developer's expense. 13.4.2. If the City considers it necessary or advisable that covered Work be observed by the City or inspected or tested by others, the Developer, at the City's request, shall uncover, expose or otherwise make available for observation, inspection or testing as the City may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is Defective, the Developer shall bear all direct; indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys and other professionals), and the City shall be entitled to an appropriate decrease in the Contract Price. If it is found that such Work is not Defective, the City shall bear the cost of all direct, indirect, and consequential costs of 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 Developer shall be entitled to an appropriate increase in the Contract Price. Notwithstanding the previous sentence of this section, Developer shall bear the cost of uncovering all Work if required to do so by a regulatory agency of the City (i.e. the City Building Department) even if the uncovered Work is deemed satisfactory or not defective. DB4-03.doc ••DB4 Page 53 13.5 City May Stop The Work: If the Work is defective, or the Developer fails to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, the City may order the Developer to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work shall not give rise to any duty on the part of the City to exercise this right for the benefit of the Developer or any other party. 13.6 Correction or Removal of Defective Work: If required by the City, the Developer shall promptly, as directed, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by the City, remove it from the site and replace it with non -defective Work. The Developer shall bear all direct, indirect and consequential costs of such correction or removal (including but not limited to fees and charges of engineers, architects, attorneys and other professionals) made necessary thereby. 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 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 Developer shall promptly without cost to City and in accordance with Citys written instructions, either correct such Defective Work, or, if it has been rejected by City, remove it from the site and replace it with non -defective Work. If the Developer 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 Developer. In special circumstances where a particular item of equipment or portion of Work is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications or by Written Amendment. Landscaping 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 Developer shall bear all direct, indirect and consequential costs attributable to the City's evaluation of and determination to accept such Defective Work. All accepted defective Work shall be subject to significant price reduction acceptable to the City. DB4-03.doc "DB4 Page 54 13.9 City May Correct Defective Work: If the Developer fails within ten (10) consecutive calendar days after written notice of the City to proceed to correct and to correct Defective Work or to remove and replace rejected Work as required by the City in accordance with paragraph 13.6., or if the Developer fails to perform the Work in accordance with the Contract Documents, or if the Developer fails to comply with any other provision of the Contract Documents, the City may, after seven days' written notice to the Developer, correct and remedy any such deficiency. In exercising the rights and remedies under this paragraph the City shall proceed expeditiously to the extent necessary to complete corrective and remedial action. The City may exclude the Developer from all or part of the site, take possession of all or part of the Work, and suspend the Developer's services related thereto, take possession of the Developer's tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Developer but which are stored elsewhere. The Developer shall allow the City, the City's representatives, agents and employees such access to the site as may be necessary to enable the City to exercise the rights and remedies under this paragraph. All direct, indirect and consequential costs of the City in exercising such rights and remedies will be charged against the Developer, and a Change Order will be issued by the City incorporating the necessary revisions in the Contract Price. Such direct, indirect and consequential costs will include but not be limited to fees and charges of engineers, architects, attorneys and other professionals, all court costs and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement ofthe Developer's Defective Work. The Developer shall not be allowed an extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by the City of the City's rights and remedies hereunder. 13.10 Unauthorized Work. Work performed beyond the lines and grades on the Drawings or approved Design Documents, Construction Documents or Shop Drawings and extra work done without written authorization, will be considered as unauthorized work, and the Developer will receive no compensation therefore. If required by the City, unauthorized work will be remedied, removed, or replaced by the Developer at the Developer's expense. ARTICLE 14 PAYMENTS TO DEVELOPER AND COMPLETION 14.1 Determination of Work Value: The Work quantities actually installed and materials properly stored through the month shall serve as the basis for preparation and justification of the progress payments. Payments to the Developer shall be prepared on the Pay Estimate Form attached as Exhibit and shall be based on a percentage complete of the schedule of values through the month. DB4-03.doc '•DB4 Page 55 14.2 Application for Progress Payment. 14.2.1. Progress payments shall be made once each month as the Work progresses, when the Developer is performing satisfactorily under the terms of the Contract Documents. Said payments shall be based upon progress estimates prepared by the City correlated to the Final Detailed Schedule, of the value of work performed and materials placed in accordance with the Contract Documents and the value of materials on hand in accordance with this Part 2 Agreement. The amount of the progress estimate to be paid to the Developer shall be subject to the following: 14.2.1.1 STANDARD RETAINMENT. The City shall make a deduction from the progress estimate in the amount considered necessary to protect the interests of the City, pursuant to Section 24-91-103, CRS. That amount to be retained shall be as follows: (a) for contract price of less than $50,000 the retained amount shall be 10% of the value of the completed work; (b) for contract price between $50,000 to $1,000,000.00 the retained amount shall be 7% of the value of the completed work; and, (c) for contract price over $1,000,000.00 the retained amount shall be 5% of the value of the completed work. No further retainment shall be withheld if the Contractor makes satisfactory progress in the Contract Work. The amount retained shall be in effect until such time as final payment is made, with the following exceptions: a) When one hundred Percent (100%) of the Work has been complete, the City may, at its 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 City may reduce the retainment to fifty percent of the required retainage. In addition to standard retainment, the City shall withhold funds for claims against the Contractor filed by Subcontractors and Suppliers, pursuant to Section 38-26-107, CRS. 14.2.2. NO PAYMENT. A progress payment shall not be made when the total value of the work done since the last estimate amounts is less than $500.00. 14.2.3. LUMP SUM ITEMS. All lump sum Bid items shall be paid on a pro-rata basis determined by the percentage of the total Work completed or if the Bid item is installed or completed one hundred percent (100%) in place and accepted by the City. 14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work, the Developer is responsible for prompt payments to all Subcontractors. As a minimum, the Developer shall incorporate provisions in all subcontracts to satisfy the following requirements: 14.2.4.1. The Developer shall make payments to all Subcontractors at least once each month as the Work progresses, when the Subcontractor is performing satisfactorily under the terms of the Contract Documents between the Developer and Subcontractor; DB4-03.doc "DB4 Page 56 14.2.4.2. Payments Subcontractor under Subcontractor; to Subcontractors shall be based on all moneys due the the terms of the contract between the Developer and The Developer shall make payments to Subcontractors within 10 days of receipt of the City's payment to the Developer; Subcontractors and lower tier Subcontractors shall make payments to their Subcontractors, according to the requirements above and shall make payments within 10 days of receipt of payment from the next higher tier. 14.3 Developer's Warranty of Title: The Developer warrants and guarantees that title to all Work, materials and equipment covered by any progress pay estimate approved for Payment, whether incorporated in the Project or not, will pass to the City no later than the time of payment free and clear of all Liens. 14.4 City's Review of Progress Payments. 14.4.1. The City's representative's recommendation of any payment requested in an Application for Payment will constitute a representation by the City's Representative to the City, based on the City's Representative's on -site observations of the Work in progress and on the City's Representative's review of the pay estimate form and the accompanying data and schedules that the Work has progressed to the point indicated; that to the best of the City's Representative's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final determination of quantities and classifications for Unit Price Work in the Bid Proposal form, and to any other qualifications stated in the recommendation); and that the Developer is entitled to payment of the amount recommended. However, by recommending any such payment the City's Representative will not thereby be deemed to have represented that exhaustive or continuous on -site inspections have been made to check the quality or the quantity of the Work beyond the responsibilities specifically assigned to the City's Representative in the Contract Documents or that there may not be other matters or issues between the parties that might entitle the Developer to be paid additionally by the City or the City to withhold payment to Developer. 14.4.2. The City's Representative may refuse to recommend the whole or any part of any payment if, in the City's Representative's opinion, it would be incorrect to make such representations to the City. The City's Representative may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended, to such extent as may be necessary in the City's Representative's opinion to protect the City from loss because: DB4-03.doe "DB4 Page 57 14.4.2.1. The Work is Defective, or completed Work has been damaged Requiring correction or replacement; 14.4.2.2. The Contract Price has been reduced by Written Amendment or Change Order; 14.4.2.3. The City has been required to correct Defective Work or complete Work In accordance with paragraph 13.9.; or, 14.4.2.4. Of the City's Representative's actual knowledge of the occurrence of any of the events enumerated in Article 15. The City may refuse to make payment of the full amount recommended by the City's Representative because claims have been made against the City on account of the Developer's performance or furnishing of the Work or Liens have been filed in connection with the Work or there are other items entitling the City to a set-off against the amount recommended, but the City must give the Developer immediate written notice stating the reasons for such action. 14.5 Substantial Completion: 14.5.1. The date accepted by the City when the construction of all Work items in the project or a specified part thereof is one hundred percent (100%) completed, in accordance with the Contract Documents, so that the project or specified part can be utilized for the purpose for which it is intended shall establish substantial completion for the project or for a specified part. 14.5.2. When the Developer considers the entire Work ready for its intended use, the Developer shall coordinate with the City an inspection of the Work and conduct such tests as required to ensure the Work meets or exceeds all Performance Standards to help determine the status of completion. If the City does not consider the Work satisfactorily complete, the City shall notify the Developer in writing giving the reasons therefore. There shall be a Punch List of the items to be completed before final inspection and final payment At the time of delivery of the completed punch list items, the City must conduct a final inspection and upon acceptance by the City, the Developer shall deliver a fully executed Claim Release form to facilitate the project closure. 14.6 Partial Utilization: Use by the City of any finished part of the Work, which has specifically been identified in the Contract Documents, or which the City and the Developer agree constitutes a separately functioning and useable part of the Work that can be used by the City without significant interference with the Developer's performance of the remainder of the Work, may be accomplished prior to Final Completion of all the Work subject to the following: That portion of the retainage relating to such partial utilization shall be paid to the Developer within 30 days of utilization. DB4-03.doe "DB4 Page 58 14.6.1. The City at any time may request the Developer in writing to permit the City to use any such part of the Work which the City believes to be ready for its intended use and substantially complete. If the Developer agrees, the Developer will certify to the City that said part of the Work is substantially complete. 14.7 Final Inspections: Upon written notice from the Developer that the entire Work or an agreed portion thereof is complete, the City will make a final inspection with the Developer and will notify the Developer in writing of all particulars in which this inspection reveals that the Work is incomplete or Defective. The Developer shall immediately take such measures as are necessary to remove and eliminate all such deficiencies. All deficiencies or incomplete Work items shall be recorded by the City Project Inspector on a Punch List Sheet(s) and distributed to the Developer and the City immediately. The Developer, upon notice of completion shall state the responsibility of each parry for security, maintenance, heat, utilities, damages to work and insurance. 14.8 Final Progress Payment. 14.8.1. After the Developer has completed all such corrections to the satisfaction of the City and delivered all maintenance and operating instructions, schedules, guarantees, as -built documentation (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 Developer shall deliver to the City a fully executed and notarized Claim Release Form and the City will advertise for project closure and release of the final retainment. The final pay estimate will consist of retainment amount only. Final payment will be released following a thirty (30) day waiting period from the date of the second publication of the advertisement for final settlement and closure if no verified claim has been filed with the City. 14.9 Settlement Date, Notice to Subcontractors, Acceptance and Final Payment: If, on the basis of the City's observation of the Work during construction and final inspection, and the City's review of the final progress Payment and accompanying documentation - all as required by the Contract Documents, the City's Representative represents to the City that the Work has been completed and the City is satisfied that the Work has been completed and the Developer's other obligations under the Contract Documents have been fulfilled, the City shall cause to be published on two (2) consecutive weeks in the weekly editions of the Aspen Times, a public notice setting a final settlement date; which said settlement date shall be at least ten (10) days after the second publication. Said notice shall advise all persons, co -partnerships, associations of persons, companies, or corporations that have fumished labor, provisions, materials, team hire, sustenance, or other supplies used or consumed by Developer or his Subcontractor(s), that they may file a claim with the City, at any time up to and including the time of final settlement. Upon filing of any such claim, the City shall withhold from retainment withheld in accordance with the Contract Documents, to insure the payment of said claims until the same have been paid or such claims as filed have been withdrawn, such payment or withdrawal to be evidenced by filing with City a receipt in full or an order for withdrawal in writing and signed by the person filing such claim DB4-03.doc "DB4 Page 59 or his duly authorized agents or assigns. Such funds shall not be withheld longer than ninety days following the date fixed for final settlement as published unless an action is commenced within that time to enforce such unpaid claim and a notice of Lis Pendens is filed with the City. At the expiration of such ninety day period, the City shall pay to Developer such moneys and funds as are not subject of suit and Lis Pendens notices and shall retain thereafter, subject to the final outcome thereof, only such balance of funds to insure the payment of judgments which may result from such suit. 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 Developer to the City. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 14.8.3. No interest shall be due the Developer as a result of payments retained or withheld as a result of subcontractor or materialmen claims. 14.10 Developer's Continuing Obligation: The Developer's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by the City, nor the issuance of a certificate of Substantial Completion, nor any payment by the City to the Developer under the Contract Documents, nor any act of acceptance by the City nor any failure to do so, nor any review and approval of a Shop Drawing or sample submission, nor the issuance of a notice of acceptability by the City's Representative pursuant to paragraph 14.9, nor any correction of Defective Work by the City will constitute an acceptance of Work not in accordance with the Contract Documents or a release of the Developer's obligation to perform the Work in accordance with the Contract Documents. 14.11 Liquidated Damages: 14.11.1. TIME FOR COMPLETION: It is hereby understood and mutually agreed, by and between the Developer and the City, that the date of beginning Work and the time of completion as specified herein are essential conditions of the Agreement. The Developer agrees that said Work shall be prosecuted regularly, diligently, and at such rate of progress as will ensure completion within the time(s) specified. It is expressly understood and agreed, by and between the Developer and the City, that the time(s) for completion of the Work described herein are reasonable time(s) for the completion of the Work, taking into consideration the average climatic conditions prevailing in the locality of the Work. 14.11.2. TIME IS OF THE ESSENCE TO THE AGREEMENT: It is further agreed that time is of the essence in completing the Work, and that the Project Work Schedule referenced at paragraph 6.9. and the Submittal Schedule referenced at paragraph 6.3. and all dates set forth therein and where in the Contract Documents, an additional time is allowed for the DB4-03.doc "DB4 Page 60 completion of the Work, the new time limit fixed by such extension shall be of the essence of the Contract. 14.11.3. LIQUIDATED DAMAGES: Substantial Completion of the Construction Phase are of paramount importance to the City. If any portion of the Work is not completed in accordance with any time extensions granted by the City, the City will suffer damage, the extent of which will be impractical and extremely difficult to estimate accurately. Therefore, as part of the consideration for executing the Contract, it is hereby agreed that the Developer shall pay to the City One Thousand Dollars ($1,000.00) per day unless a different amount is specified in the Liquidated Damages Form included in the Contract Documents. This particular provision shall not be construed as a penalty upon said Developer for failing fully to complete said Work as agreed in the Proposal and Contract Documents, but as Liquidated Damages to compensate the City for all costs incurred as a result of such breach of Contract. 14.11.4. DELAYS IN WORK COMPLETION OF CONSTRUCTION PHASE: Subject to the terms of "Excusable Delays", as contained in Section 14.11.6. of this Part 2 Agreement, Developer expressly agrees to pay the City as a reasonable estimate of just compensation for damages contemplated with the clause, the amount set forth in the Liquidated Damages Form for each consecutive calendar day that Substantial Completion is delayed in the Construction of the project. In no event shall the total amount of liquidated damages exceed twenty percent (20%) of the total Contract Price for the Construction. 14.11.5. DELAYS IN SUBMITTAL OF AS -BUILT DOCUMENTATION: Should the Developer fail to make delivery of the as -built documentation covered in the Contract Documents prior to release of the final payment, it shall pay liquidated damages to the City the amounts equal to preparation cost of the As -Built drawings by the City and its engineers and surveyors. 14.11.6. EXCUSABLE DELAYS - FORCE MAJEURE: If, by reason of Force Majeure, any party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement then such party shall give notice and full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the liability then claimed, but for no longer period, and any such party shall remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the United States or the State of Colorado or any political subdivision, except the City, or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines, or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the DB4-03.doc "DB4 Page 61 opposing party or parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. 14.11.7. CUMULATIVE REMEDY: The liquidated damages referred to herein are intended to be and are cumulative and shall be in addition to every other remedy now or hereafter enforceable at law, in equity, by statute, or under contract. ARTICLE 15 SUSPENSION OF WORK AND TERMINATION 15.1 City May Suspend Work: The City may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than ninety days by notice in writing to the Developer and will fix the date on which work will be resumed. The Developer shall resume the Work on the date so fixed. The Developer shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both if the Consecutive Calendar Days are used to complete the Work, directly attributable to any suspension if the Developer makes an approved claim therefor as provided in Article 11. Other Work suspensions such as delayed start or phased construction shall not entitle the Developer to any compensation of payment or time. 15.2 City May Terminate: Upon the occurrence of any one or more of the following events: 15.2.1. If the Developer commences a voluntary case under any chapter of the Bankruptcy Code (Title Il, United States Code), as now or hereafter in effect, or if Developer takes any equivalent or similar action by filing a petition or otherwise under any other federal or state law in effect at such time relating to the bankruptcy or insolvency; 15.2.2. If a petition is filed against Developer under any chapter of the Bankruptcy Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against Developer under any other federal or state law in effect at the time relating to bankruptcy or insolvency; 15.2.3. If the Developer makes a general assignment for the benefit of creditors; 15.2.4. If a trustee, receiver, custodian or agent of Developer is appointed under applicable law or under contract, whose appointment or authority to take DB4-03.doc "DB4 Page 62 charge of property of Developer is for the purpose of enforcing a Lien against such property or for the purpose of general administration of such property for the benefit of Developer's creditors; 15.2.5. If the Developer admits in writing an inability to pay its debts generally as they become due; 15.2.6. If the Developer persistently fails to perform the Work in accordance with the Contract Documents (including but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule established under paragraph 2.9 as revised from time to time); 15.2.7. If the Developer disregards Laws or Regulations of any public body having jurisdiction; or 15.2.8. If the Developer otherwise violates in any substantial way any provisions of the Contract Documents: The City may, after giving the Developer (and the surety, if there be one) seven days written notice and to the extent permitted by Laws and Regulations, terminate the services of Developer, exclude the Developer from the site and take possession of the Work and of all the Developer's tools, appliances, construction equipment and machinery at the site and use the same to the full extent they could be used by the Developer (without liability to the Developer for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the City has paid the Developer but which are stored elsewhere, and finish the Work as the City may deem expedient. In such case the Developer shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds the direct, indirect and consequential costs of completing the Work (including but not limited to fees and charges of engineers, architects, attorneys and other professionals and court and arbitration costs) such excess will be paid to the Developer. If such costs exceed such unpaid balance, the Developer shall pay the difference to the City. Such costs incurred by the City will be approved as to reasonableness by the City and incorporated in a Change Order, but when exercising any rights or remedies under this paragraph the City shall not be required to obtain the lowest price for the Work performed. 15.2.10. Where the Developer's services have been so terminated by the City, the termination will not affect any rights or remedies of the City against the Developer then existing or which may thereafter accrue. Any retention or payment of moneys due the Developer by the City will not release the Developer from liability. 15.2.11. Upon seven days' written notice to the Developer, the City may, without cause and without prejudice to any other right or remedy, elect to abandon the Work and terminate the Contract. In such case, the Developer shall be paid for all Work executed and any expense sustained plus reasonable termination expenses. DB4-03.doc "DB4 Page 63 15.3 Developer May Stop Work or Terminate: If, through no act or fault of the Developer, the Work is suspended for a period of more than ninety days by the City or under an order of court or other public authority, then the Developer may, upon seven days written notice to the City, terminate the Contract and recover from the City payment for all Work executed and installed in place and any expense sustained plus reasonable termination expenses. The provisions of this paragraph shall not relieve the Developer of the obligations under Article 6 to carry on the Work in accordance with the progress schedule and without delay during disputes and disagreements with the City. 15.4. Termination of Professional Design Services. Prior to termination of the services of the Architect or any other design professional designated in this Part 2 Agreement, the Developer shall identify to the City in writing another architect or other design professional with respect to whom the City has no reasonable objection, who will provide the services originally to have been provided by the Architect or other design professional whose services are being terminated. ARTICLE 16 MISCELLANEOUS 16.1 Nondiscrimination During the performance of this Contract, the Developer agrees as follows: 16.1.1. The Developer will not discriminate against any employee or applicant for 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 Developer will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national 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 advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Developer agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 16.1.2. The Developer, with regard to the Work performed by it during the Contract, shall not discriminate on the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. DB4-03.doc •'DB4 Page 64 16.1.3. The Developer will, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. 16.1.4. In all solicitations either by competitive bidding or negotiation made by the Developer for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential Subcontractor or Supplier shall be notified by the Developer of the Subcontractor's obligations under this Contract and the regulations relative to nondiscrimination on the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. 16.1.5. The Developer will send to each labor union or representative of workers, with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Developer's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 16.2 Giving Notice: Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 16.3 Computation of Time: 16.3.1. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 16.3.2. A consecutive calendar day of twenty-four hours measured from midnight to the next midnight shall constitute a day. A working day is any day; Monday through Friday of each week, also called business day. 16.4 General: Should the City or the Developer suffer injury or damage to person or property because of any error, omission or act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim will be made in writing to the other party within a reasonable time of the first observance of such injury or damage. The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose. DB4-03.doc "DB4 Page 65 16.4.1. The duties and obligations imposed by this Part 2 Agreement 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 Developer by this Part 2 Agreement, and all of the rights and remedies available to the City thereunder, are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. All representations, warranties and guarantees made in the Contract Documents will survive final payment and termination or completion of the Agreement. 16.5 Independent Contractor Status: It is expressly acknowledged and understood by the parties that nothing in this agreement shall result in, or be construed as establishing an employment relationship. The Developer shall be, and shall perform as, an independent the Developer who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Developer shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Developer. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Developer. The Developer shall be solely and entirely responsible for its acts and for the acts of the Developer's agents, employees, servants and Subcontractors during the performance of the Agreement. THE DEVELOPER, AS AN INDEPENDENT DEVELOPER, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE AGREEMENT. 16.6 Prohibited Interest: No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. 16.7 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: The Developer warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Developer for the purpose of securing business. DB4-03.doc "DB4 Page 66 16.7.1. The Developer agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement or to any solicitation or proposal therefore. 16.7.2. It shall be a material breach of the Agreement for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Developer or higher tier Subcontractor or any person associated therewith, as an inducement for the award of a Subcontract or order. The Developer is prohibited from inducing, by any means, any person employed under this Agreement to give up any part of the compensation to which he/she is otherwise entitled. The Developer shall comply with all applicable local, state and federal "anti -kickback" statutes or regulations. 16.8 Payments Subject to Annual Appropriations: The parties hereto acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of the City. City's obligations under this Agreement are subject to City's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provisions of this Agreement shall constitute mandatory charge or requirements in any ensuing fiscal year of the City. No provision of this Agreement shall be construed or interpreted as creating a multiple -fiscal year direct or indirect debt or other financial obligation of the City within the meaning of any constitutional or statutory debt limitation. This Agreement shall not directly or indirectly obligate the City to make any payments beyond those appropriated for the City's then current fiscal year. No provisions of this Agreement shall be construed to pledge or create a lien on any class or source of City's moneys, nor shall any provision of this Agreement restrict the future issuance of City's bonds or any obligations payable from any class or source of City's money. 16.9 Developer Acceptance: 16.9.1. The acceptance by the Developer of any payment made on the final completion of Work under this Part 2 Agreement, or of any final payment due on termination, shall constitute a full and complete release of the City from any and all claims, demands and causes of action whatsoever which the Developer, has or may have against the City under the provisions of these Contract Documents. 16.9.2. No action shall be maintained by Developer, its successors or assigns, against the City on any claims based upon or arising out of this Agreement or out of anything done in connection with this Agreement unless such action shall be commenced within 180 days after the date approval of the final progress payment hereunder, or within 180 days of the termination of this Agreement. DB4-03.doc "DB4 Page 67 16.10 Successors and Assigns This Agreement and all of the covenants hereof shall inure to the benefit of and be bidding upon the City and the Developer respectively and their agents, representatives, employees, successors, assigns and legal representatives. Neither the City nor the Developer shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of the other party. 16.11 Third Parties This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom the Developer of the City may assign this Agreement in accordance with the specific written consent, any rights to claim damages or to bring suit, action or other proceeding against either the City or the Developer because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 16.12 Waiver No waiver of default by either party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 16.13 Contract Made in Colorado The Parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 16.14 Attorney's Fees In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing parry shall be entitled to its costs and reasonable attorneys fees. 16.15 Waiver of Presumption This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Agreement. 16.16 Severability Clause: If any provision of the Agreement is subsequently declared by legislative or judicial authority to be unlawful, unenforceable, or not in accordance with applicable laws, statutes, and DB4-03.doc **DB4 Page 68 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 Developer shall maintain all data and records pertinent to the Work performed under this Agreement, in accordance with generally accepted accounting principles, and shall preserve and make available all data and records until the expiration of three (3) years from the date of final payment under this Agreement, or for such longer period, if any, as is required by applicable statute or by other articles of the Contract Documents. The authorized representatives of the U.S. Department of Transportation, Comptroller General of the United States, the State of Colorado and the City shall have access to all such data and records for such time period to inspect, audit and make copies thereof during normal business hours. The Developer covenants and agrees that it shall require that any Subcontractor utilized in the performance of this Agreement shall permit the authorized representatives of the United States Department of Transportation, the State of Colorado, and the City, to similarly inspect and audit all data and records of said Subcontractors relating to the performance of said Subcontractors under this Agreement for the same time period. 16.18 Audit 16.18.1. COST OR PRICING DATA: If the Developer has submitted cost or pricing data in connection with the pricing of any modification to the Agreement, unless the pricing was based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation, or as agreed to as a Lump Sum Amount, the City or a representative of the City shall have the right to examine and audit all books, records, documents, and other data of the Developer (including computations and projections) related to negotiating, pricing or performing the modification, in order to evaluate the accuracy, completeness, and currency of the cost and pricing data. In the case of pricing any modification, the authorized representatives of the U.S. Department of Transportation, and the State of Colorado shall have the same rights. 16.18.2. AVAILABILITY: The Developer shall make available at its offices at all reasonable times the materials described in the Contract Documents, for examination, audit, or reproduction, until three (3) years after final payment under the Agreement, or for any period, if any, as is required by applicable statute or by other articles of this Agreement. 16.18.3. If this Agreement is completely or partially terminated, the records relating to the Work terminated shall be made available for three years after any resulting final termination payment. 16.18.4. Records pertaining to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to the performance of this Agreement shall be made available until disposition of such appeals, litigation, or claims. 16.19 Rights and Remedies. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not D134-03.doc "D134 Page 69 a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law, including but not limited to tort remedies. Developer agrees that the economic loss rule as set forth in the Town of Alma v Azco Construction, Inc., 10 P.3d 1256 (Colo. 2000) shall not serve as a limitation on City's right to pursue tort remedies in addition to other remedies it may have against Developer. Such rights and remedies shall survive the acceptance of the Work or any termination of the Contract Documents. Developer further specifically waives all the provisions of the Construction Defect Action Reform Act of 2003, Sections 13-20-801, et seq., regarding defects in the Work under the Agreement. This Agreement shall not be binding upon the City of Aspen unless duly executed by the City Manager or the Mayor of the City of Aspen following a resolution of the Aspen City Council authorizing the City Manager or Mayor to execute the same. The Developer shall commence Work required by this Agreement within seven (7) calendar days after the date of the Notice to Proceed and shall achieve Substantial Completion by 12.31.2010, starting no later than 10.1.2009, with no anticipated delays due to permit issuance. IN WITNESS WHEREOF, the parties agree hereto have executed this Part 2 Agreement on the date first above written. ATTESTED BY: CITY OF ASPEN, COLORADO RECOMMENDED FOR APPROVAL: ATTESTED BY: Title: APPROVED AS TO FORM: By: City Attorney DEVELOPER: A&ej" By: Cc,U 1 CThJ I�� Title: M M+-A-&-&-L.. (A -PA L L,6 Agreement shall not be binding upon the City of Aspen unless duty executed by the City Manager or Dr of the City of Aspen following a resolution of the Aspen City Council authorizing the City Manage Dr to execute the same. Developer shall commence Work required by this Agreement within seven (7) calendar days after the date Note: Certification of Incorporation shall be executed if Developer is a Corporation. If a partnership, the Agreement shall be signed by a Principal and indicate title. DB4-03.doc "DB4 Page 70 ADDENDUM NO. 1 This Addendum No. 1 ("Addendum No. 1") dated 31 August 2009, is made by and between WPA, LLC, a Colorado limited liability company (the "Developer") and the City of Aspen (the "City") as an amendment to the "Part 2 Agreement Between City of Aspen and Developer" dated 31 August 2009 (the "Part 2 Agreement") for the 212 AABC City Employee Housing project. This Addendum No. 1 is made with reference to the following: A. The parties desire to amend certain provisions of the Part 2 Agreement, as set forth herein. B. The references to definitions and sections herein use the same designation and numbering as the Part 2 Agreement. C. The capitalized terms not defined in this Addendum No. 1 have the meanings ascribed thereto in the Part 2 Agreement. D. Black text is existing text from Part 2 Agreement, while Blue text is added. The parties amend the Part 2 Agreement as follows: ARTICLE 1 - Definitions 1.2 Wherever used in this Agreement or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof: Contract Documents - The Contract Documents which comprise the entire agreement between the City and Developer consist of the following: 1. This Part 2 Agreement. 2. Exhibits to this Part 2 Agreement. (Pages _ to inclusive) 3. AgFeement, iAGluding, but Rot limited to, these deliveirables identified as pa Drawings to be dated Sept. 1, 2009 (Titled: 100% CID _VE_Rev 1) released for construction and Specifications set forth in the Project Manual dated Sept. 1, 2009 released for construction and bidding by Developer to City in accordance with the Part 1 Agreement. 4. � , All Addenda which pertain to the Contract Documents, City approved alternates, and schedule of allowances when approved and accepted by 1 I Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing City and any other documents specifically identified as being a part of the Contract Documents. 5. Notice of Award. 6. Notice to Proceed. 7. Any Supplementary or Special Conditions. 8. Technical Specifications and Drawings released for Construction. 9. Addendum No. 1 10. All written amendments to this Part 2 Agreement, including Change Orders. 11, Payment, performance, and maintenance bonds. 12. Liquidated Damages Form. 13. HP Geotech soils report dated June 19, 2006, job no. 106-0457 The Contract Documents shall not include: (i) any bidding documents or requirements including advertisements or invitations to bid, instructions to bidders, or parts of Addenda relating to any of these; (ii) sample forms; (iii) Developer's bid or proposal; or (iv) any other documents not specifically listed in this definition as being included in the Contract Documents. Contractor — means the Developer. Drawings - the Work te be pefffeicm-ed- and- whiGh have been prepared eF appFgved by the Gity. are those writings prepared or furnished by Architect which graphically and pictorially show the design, scope, extent and character of the Work to be performed by Developer, and generally include locations, dimensions, elevations, sections, details, schedules and diagrams. The Drawings include other drawings prepared or furnished by Architect during progress of the Work including supplementary drawings which clarify or define in greater detail the intent of the Drawings and Specifications. Any reference to the word "plans" in the Contract Documents shall mean the Drawings. The Drawings initially prepared or furnished by Architect are identified 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 City or the Architect, to the Developer during construction. Proposal — Developer's Proposal as well as the preparation and modifications to the Proposal submitted by Developer to the City in accordance with the requirements of the Part 1 Agreement. The Proposal shall not constitute part of the Contract Documents. and Additional Sew*Ges as aetaaed an the PaFt 1 Ag ent Subcontractor — includes the selected General Contractor. 2 1 Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing Substantial Completion - The Work (or a specified part thereof) has progressed to the point where, in the opinion of the City as evidenced by the City's acceptance, is sufficiently complete, in accordance with the Contract Documents, so that the Work can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion thereof. - the Work. ARTICLE 3 CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.3 Precedence of Contract Documents: In the event of discrepancies or conflicts between the various components of the Contract Documents, the order of precedence shall be as follows: 1. Change Orders, Work Change Directives, or formal written Amendments to this Part 2 Agreement. 2. 2. Special or supplementary conditions shall take priority over General Conditions; 3. Addenda and Modifications to the Drawings and Specifications take precedence over original Drawings and Specifications; 4. Drawings: a. Detailed drawings. b. Standard dFawings. In the Drawings, larger scale drawings take precedence over smaller scale drawings, figured dimensions over scaled dimensions and noted materials over graphic indications; 5. Technical Specifications. In the Specifications, detailed specifications take priority over general specifications; t}: Spedal Sendkieas 7. This Addendum No. 1 7-8 Part 2 Agreement ARTICLE 4 Availability of Land: Physical Conditions: Reference Points 4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Special Conditions for identification of those reports of explorations and tests of subsurface conditions at the site that have been utilized by the City in preparation of the Contract Documents. The Developer may aet-rely upon the accuracy of the technical data contained in such reports, OF upeR but not any non -technical data, interpretations or opinions contained therein or for the completeness thereof for the Developer's purposes. Developer shall verify to its satisfaction the information and data contained in such reports. Developer shall have full City assumes all risks of deductions and conclusions made as to the nature of the soils, the difficulties of making 3 1 Addendum No. I_Part 2 Agreement 212 AABC City Employee Housing and maintaining required excavations and performing other work on Site. Developer shall exercise ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in such reports. The City and Developer recognize and affirm that the subject project site has not benefited from full subsurface investigations. The Developer shall follow best practices during excavation to locate and protect all underground facilities. In the event the Developer encounters subsurface conditions not typical of this region and geology, the Developer shall investigate and present all possible options to the City for the mitigation of said condition, with the intent of preserving and maintaining the project budget and schedule. Rocks, Boulders and ledges are expected. Boulders less than or equal to one cubic yard shall be included in the contract price, while Boulders greater than that amount shall be incidental to the contract value. 4.6 Hazardous Materials 4.6.1. Prior to commencement of any Work and as a condition precedent to payment by the City of any costs for it, the Developer shall at no additional o9st to the G conduct tests the Developer deems necessary to determine the existence of Hazardous Materials by appropriately licensed Subcontractors or entities. The City shall reimburse the Developer for the invoice costs of the tests. , only in the event #mt the DevelepSF fuRlishe Materials: 4.6.3.1 If City suspects or determines the presence of any toxic, hazardous or radioactive waste, substance, material, chemical, compound or contaminated material including asbestos and polychlorinated biphenyl (PCB), mine or mill tailings, petroleum, petroleum contaminated soils or any other substance the presence of which requires special handling, transportation, treatment, storage or disposal, by any parry other than Developer, all of which are collectively referred to as "hazardous material," City shall promptly notify Developer. In addition, City shall comply with all requirements of all Laws and Regulations pertaining to the hazardous material including the Federal Emergency Planning and Community Right -to -Know Act, Federal Comprehensive Environmental Response, Compensation and Liability Act, Resource Conservation and Recovery Act, Clean Water Act, Clean Air Act and Occupational Safety and Health Act including the Hazard Communication Standard, and supply all necessary information relating to the hazardous material to the appropriate Federal, state or local agencies. If Developer encounters any hazardous material on Site which is not included within the scope of the Work, Developer shall immediately stop all work in the affected area and take no action which would aggravate the condition. The Developer shall immediately, in person or by telephone, notify City and Architect, which shall be followed by written notice to City and Architect to be given that same day. 4 1 Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing The Developer shall also immediately stop all work in the affected area only. To the maximum extent feasible, Developer shall relocate its work activities to other areas and continue with other construction operations while the perceived hazardous material is evaluated. If the material of concern is determined not to constitute a hazardous material, Developer will be so advised by City and Developer shall promptly resume all work activities in the affected area. If any hazardous material which is not included within the scope of the Work is encountered and is minor in nature causing no significant increase or decrease in Developer's cost or time of performance of the Work, no equitable adjustment of the Contract Sum or Guaranteed Maximum Price or extension of the Contract Time shall be allowed. If the hazardous material causes a significant increase or decrease in Developer's cost or time of performance of any work, a Claim for an equitable adjustment of the Contract Sum or Guaranteed Maximum Price and extension of the Contract Time may be made by either party. The Claim shall be considered a differing site condition, and the rights and obligations of the parties shall be as provided elsewhere in the Contract Documents. ARTICLE 5 BONDS, INDEMNIFICATION AND INSURANCE 5.2 Indemnification: The Work performed by Developer shall be at the risk of Developer and its employees, subcontractors and sub -tier subcontractors exclusively. To the fullest extent permitted by law, Developer, subcontractors and sub -tier subcontractors shall indemnify, defend (at their sole expense) and hold harmless City, its officers, employees, insurers, and self- insurance pool (hereinafter referred to as the "Indemnified Parties'), from and against any and all claims for bodily injury or death, damage to property, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, arising out of performance of the Work, demands, damages, actions, causes of action, suits losses judgments, obligations and any liabilities, costs and expenses (including, but not limited to investigative and repair costs, attorney fees and costs, and consultant's fees and costs), which arise out of or are in any way connected with the Work performed, materials furnished, or services provided under this Agreement, by Developer or its agents. Developer shall not be obligated to indemnify or defend the Indemnified Parties for claims finally determined by a court of law or arbitrator to arise from the negligence or willful misconduct of the Indemnified Parties. Developer's indemnification and defense obligations hereunder shall extend to claims occurring after this Agreement is terminated as well as while it is in force, and shall continue until any and all actions against the Indemnified Parties for such matters are fully and finally adjudicated and barred by applicable laws. 5 1 Addendum No. I_Part 2 Agreement 212 AABC City Employee Housing -.� The Developer agrees to investigate, handle, respond to, and provide defense for and defend against, any such liability, claims or demands at the sole expense of the Developer, The Developer also agrees to bear all other costs and expenses related thereto, including court costs and attorney fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Developer for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 5.3.2.2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent Contractors Develepers, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 5.2.2.4 Property Insurance upon the Construction at the site in an amount equal to the full replacement cost thereof and to include, at a minimum, the interests of the City, Developer and subcontractors each of whom shall be considered to have an insurable interest and shall be listed as loss payees additiMal insweds; be written on a Builder's Risk "all-risk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss and damage to the Construction, temporary buildings, false work and all materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage, and such other perils or causes of loss as may be specifically required by the Special Conditions; said coverage to also include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and 6 1 Addendum No. I_Part 2 Agreement 212 AABC City Employee Housing charges of engineers and architects); and shall also include coverage to cover materials and equipment stored at the Site for incorporation into the construction, or at another location that was agreed to in writing by City prior to being incorporated in the Work, provided such materials and equipment have been included in an Application for payment approved by the City; and shall be maintained in effect until final payment is made. 5.3.3. Except for any Professional Liability, Workman's Compensation, and Property 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 Developer. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Developer shall be solely responsible for any deductible losses under any policy required above. ARTICLE 6 —DEVELOPER'S RESPONSIBILITIES 6.10.2 - Deleted. ARTICLE 7 — OTHER WORK 7.1 and 7.2 - Deleted. ARTICLE 11 CHANGE OF CONTRACT PRICE OR CONTRACT TIME 11.4.7 Overhead and Profit. (1) Two percent (2%) Twelve (12%) of Section 11.4.6 above to cover Developer's and Subcontractor's overhead and profit for work performed, (8% General Contractor + 4% Developer's fee) ARTICLE 13 WARRANTY AND GUARANTEE 13.1.2. The Developer, at no additional expense to the City, shall remedy damage to equipment, the site, or the buildings or the contents thereof which is the result of any failure or defect in the Work, and restore any work damaged in fulfilling the requirements of the Contract Documents. For warranty and punchlist purposes, the Work will meet the Residential Construction Performance Guidelines (Consumer Reference Third Edition), published by the National Association of Home Builders (the "Performance Guidelines"), and as long as the Work meets the foregoing Performance Guidelines (including any corrective measure 7 1 Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing recommended by the Performance Guidelines), the Work will be deemed to be in compliance with the warranty requirements and will be deemed satisfactory for punchlist purposes. 13.1.4 Notwithstanding anything to the contrary above, the Developer shall warrant that all equipment which are incorporated into the Work or any subsystem shall be new, free from liens and defects in design, have clear title, be free from faulty materials and workmanship, and shall conform in all aspects to the terms of the Contract Documents, to the drawings issued for manufacture by the Developer, and shall be in conformance with the Technical Specifications and Developer's Proposal (except in those instances where the Developer's Proposal has been amended by subsequent Technical Specifications). Unless the warranty period is otherwise extended or modified, the following warranty shall apply. If within the warranty period of the warranty on such equipment provided by the manufacturer of such equipment , it appears that the equipment or any part thereof does not conform to the above manufacturer's warranty and the City so notifies the Developer within a reasonable time after its discovery, the Developer shall thereupon promptly correct such nonconformity to the satisfaction of the City, at the Developer's sole expense; failing which the City may reject the item and cover by purchasing substitute items or the City may proceed to make corrections or accomplish the Developer's performance by the most expeditious means available, the cost of cover or correction shall be charged to the Developer. ARTICLE 14 PAYMENTS TO DEVELOPER AND COMPLETION 14.5 Substantial Completion: 14.5.1. The date accepted by the City when the construction of all Work items in the project or a specified part thereof is sufficiently completed ° Wmpleted, 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 specked part. 14.11.7. CUMULATIVE REMEDY: The liquidated damages referred to herein are intended to be in lieu of any other remedy now or hereafter enforceable at law, in equity, by statute, or under contract for late performance by the Developer. and- are- mimidative 8 1 Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing ARTICLE 16 MISCELLANEOUS 16.19 Rights and Remedies. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. , insludiRg but not limited to teFt remedies. Such rights and remedies shall survive the acceptance of the Work or any termination of the Contract Documents. ., CITY OF ASPEN WPA, LLC A Colorado limited liability company By: L Willis Pember, manager Date: Date: 9 • d o 9 9 1 Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing JI 03 4b MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: September 24, 2009 RE: Board Appointments By adopting the consent calendar, Council is making the following appointment: Historic Preservation Commission — Jason Lasser Historic Preservation Commission — Jamie Brewster McLeod MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Historic Preservation Plann THRU: Chris Bendon, Community Development Director DATE OF MEMO: September 17, 2009 MEETING DATE: September 28, 2009 RE: 320 East Hyman Avenue, aka The Wheeler Opera House - Conceptual PUD Review APPLICANT /OWNER: City of Aspen REPRESENTATIVE: Wheeler Opera House, 320 East Hyman Avenue, Aspen, CO represented by Gram Slaton, Executive Director, Wheeler Opera House; Farewell Mills Gatsch Architects, LLC; and Rowland + Broughton Architecture and Urban Design. LOCATION: Lots P, Q, R and S, Block 81 City and Townsite of Aspen, CO, commonly known as Wheeler Opera House. CURRENT ZONING & USE Located in the Commercial Core (CC) Historic District, a National Register Historic and local landmark containing a four story arts and cultural facility with commercial spaces on the ground floor. PROPOSED LAND USE: The applicant requests approval to construct an addition to the western side of the Wheeler Opera House to expand the existing arts and cultural facility. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning and Zoning Commission recommended Conceptual PUD approval. STAFF RECOMMENDATION: Staff recommends that the City Council grant Conceptual PUD approval with conditions for Final PUD Review. REQUEST OF CITY COUNCIL: The Applicant requests of the City Council Conceptual PUD approval. Revised 9/21/2009 320 East Hyman/ Wheeler Opera House Conceptual PUD Review Staff Memo Page 1 of 6 BACKGROUND: Project Summary The applicant proposes an addition to the historic Wheeler Opera House to expand its current Arts, Cultural, and Civic use, add administrative offices and meeting rooms, and to construct one affordable housing unit for an onsite employee. Five iterations were presented to the Planning and Zoning Commission (P&Z) concurrent with the Historic Preservation Commission (HPC) reviews during the last few months. The Commissions recommend that City Council adopt a Conceptual PUD plan that varies the allowed height in the Commercial Core Zone District from the allowable 42' to 51'2" to construct an access stairway for the sole purpose of maintaining the green roof and solar panels proposed for the rooftop. The proposed FAR is below that allowed in the Commercial Core Zone District for Arts, Cultural and Civic Uses; furthermore, the application meets all required setbacks. The proposal includes: • Basement space: 2 subgrade levels for new performance space and associated uses. The existing basement spaces converted to storage/tenant. 15t floor: Loading dock and utilities on the alley, new lobby, box office and circulation. The existing lobby converted to tenant commercial space. Historic grand staircase preserved. ■ 2nd floor: Lobby space, multi -purpose room, bathrooms, mechanical. The existing lobby remains largely the same. 3rd floor: 1 bedroom (585 sq. ft.) affordable housing unit for employee, offices, lobby. The existing Opera house stage and theatre remain largely the same. Rooftop: Green roof and/or photovoltaic panels. Table 1: Dimensional Table: grey highlight indicates a requested variation from the CC requirements. CC Zone District Existing Proposed Development Development Maximum Requirements Lot Size 12,000 s . ft. No change proposed No requirement Front Yard (south/ 4' for the addition Hyman) Setback Y ) 0' 0' for existing bldg. No requirement Front Yard (east/ Mill) Setback 0' no change proposed No requirement West Setback 60' 1 0' No requirement Rear Yard Setback 0' 0' No requirement Revised 9/21/2009 320 East Hyman/ Wheeler Opera House Conceptual PUD Review Staff Memo Page 2 of 6 Existing Proposed CC Zone District Development Development Maximum Requirements top '54- 55' 7" to the cornice, _42' Height about 71' to highest = fpr l£as green roof? ` 42' point splar panels 1.72:1 or 2.67: 1 or 2.75: 1 or Total 33,000 sq. ft. 20,655 sq. ft. 32,094 sq. ft. cumulative maximum Floor Commercial 1.28:1 or 1.65:1 or 2:1 or 24,000 sq. ft. Area Use 15,386 sq. ft. 19,816 sq. ft. Ratio Affordable n/a 0.21:1 or 2,521 s q' No requirement. Housing ft. Arts, Cultural 0.44:1 or 5,269 sq. 0.81:1 or 9,757 sq. 2.75:1 and Civic Use ft. ft. Approved by HPC and P&Z via Commercial Design Standard Public Amenity Space Review. The Commissions found that the entire building is a Public Amenity, pursuant to Section 26.575.030.C.4. Off Street Parking Established through Special Review during Final Review processes at HPC, 0 parking spaces are proposed. Lot History: The Wheeler Opera House is arguably Aspen's premiere iconic building. It was financed by prominent businessman Jerome Wheeler in 1889 and has withstood Aspen's Quiet Years, a few significant internal fires, a rebirth by the Paepcke's with an interior remodel by famed Modern architect Herbert Bayer and an interior historic restoration and modern update in the early 1980s. This building embodies the grandeur, perseverance and renaissance that define Aspen's history. The subject parcel is a 12,000 square foot lot that comprises four (4) traditional city lots located within the Commercial Core Historic District. The existing historic Wheeler Opera House is located on the eastern 6,000 square feet of the lot. To the west of the Wheeler Revised 9/21/2009 320 East Hyman/ Wheeler Opera House Conceptual PUD Review Staff Memo Page 3 of 6 parcel is the historic Motherlode building that contains a recently constructed three story addition on the alley. • Previous Actions: P & Z and HPC, acting as one review board, granted Conceptual Commercial Design Standard Review which is binding upon the Commissions in regards to the location and form of the envelope of the addition, including its height, scale, massing and proportions. The Commissions found that the entire building is a public amenity space in lieu of the traditional public amenity space defined by the Land Use Code (i.e. open to the sky, no walls or enclosures, etc.) During the Commercial Design Review, Planning Staff recommended public access to the roof because there are very few, if any, rooftop spaces downtown that are accessible to the public and provide an unobstructed view of the environment that the viewplane regulations protect. Staff found that capitalizing on the rooftop space contributes and enhances the downtown experience and meets both the Civic Master Plan and the AACP. After multiple meetings and iterations, P & Z and HPC decided that the visual impact of the infrastructure required for rooftop access outweighed the need for a community space/fourth floor, and approved a Conceptual plan with a green roof/solar panels on the roof and no public access. • Public Outreach: The applicant has engaged the public in one informational session on Monday, April 6, 2009. An open house was held at the Rowland + Broughton office on July 29, 2009 and a phone survey about the project was conducted in August. Staff strongly recommends that the applicant continue to involve the public during the development and refinement of the project through informational sessions, hand outs, and other various forms of public outreach. DISCUSSION: Conceptual Planned Unit Development (PUD) for the development of a site specific plan: City Council is asked to grant Conceptual PUD approval, pursuant to Land Use Code Chapter 26.445, after considering a recommendation from the Planning and Zoning Commission. Conceptual PUD review before the City Council is the second step in a four step review process. Once heard by the Commission, the City Council reviews the application and recommendations of the Commission at a public hearing. If approved by City Council, the Applicant may then make an application for Final PUD review before the Planning and Zoning Commission (step three). City Council will then consider the Final PUD application as the fourth and final step in the review. Additional land use approvals necessary for this project include: Certificate of Appropriateness for an addition to a historic landmark (HPC), Commercial Design Standard Final Review (joint review by HPC and P&Z), Growth Management Review for an Essential Public Facility (CC) and Growth Management Review for the Development of Affordable Housing (P&Z.) As represented in the application, there is a lot of program proposed for the expansion. The Civic Master Plan (CMP) recommends that "Future uses at the Wheeler Parcel should: • Accommodate as many additional needs of the local arts community as possible • Improve the operational function of the Wheeler Opera House Revised 9/21/2009 320 East Hyman/ Wheeler Opera House Conceptual PUD Review Staff Memo Page 4 of 6 • Contribute to improvements in the daytime administrative office and box office • Contribute to the Wheeler's ability to present more live performances and to improvements in production capabilities." Staff finds that the CMP is largely met with the proposed program, which conforms to the floor area requirements for Arts, Cultural and Civic development in the Commercial Core. The Aspen Area Community Plan (AACP) states that the "City of Aspen will continue to be an innovative leader in arts, culture, and education" and will "make educational, cultural, and artistic experiences more accessible for all valley residents." Developing an Arts, Cultural and Civic building in downtown Aspen is integral to this mission statement. The Wheeler expansion and proposed versatile interior spaces will foster a diversified arts and cultural experience in the downtown core. The requested height variation for a maintenance stairway provides access to the solar panels and green roof that are proposed to help off -set the environmental impacts of both the proposed addition and the existing building. Staff finds that the Conceptual PUD plan demonstrates consistency with the CMP and AACP Transportation: The applicant suggests a list of steps to mitigate for the projected impact of the new venue including: staggered start times when two events are planned, advertising parking and alternate transportation options, discount parking vouchers for the Rio Grande parking garage, etc. A detailed Transportation Plan is required to be submitted with the Final PUD application that studies pedestrian and traffic circulation. Parking requirements will be established by HPC through the Special Review during Final HPC Review. Housine: One single bedroom affordable housing unit is proposed onsite. The applicant is working with the Housing Department regarding employee generation rates and mitigation. Employee generation rates for an Essential Public Facility will be established by the Planning and Zoning Commission and mitigation will be approved by City Council after Conceptual PUD approval is granted. Historic Preservation: HPC found that the proposal, at a conceptual level (mass, scale, proportion), met the Historic Preservation Design Guidelines for an addition to a landmark. Concerns were raised about the relocation of the primary entrance into the addition and the impact of the entrance on the prominence of the historic Wheeler Opera House. The original entrance is the far western double doors on the Hyman Street elevation, which are currently used as an exit from the theatre. Staff consulted with the Building Department about egress requirements to determine if there were alternate solutions. Basically, it boiled down to a decision between using the original historic entrance as a secondary entrance/exit or removing the historic grand stairway to meet Building Code requirements. HPC, P&Z and Staff found that preserving the historic grand stairway outweighed trying to utilize the historic entrance as a primary portal to the performance spaces. Revised 9/21/2009 320 East Hyman/ Wheeler Opera House Conceptual PUD Review Staff Memo Page 5 of 6 REFERRAL AGENCY COMMENTS: The City Engineer, Zoning Officer, Building Department, Aspen Sanitation District, Housing Department, Utilities, Transportation Department, Parking Department, Environmental Health Department, Fire Department and the Parks Department have all reviewed the proposed application and their requirements have been included as conditions of approval when appropriate. RECOMMENDED ACTION: "In reviewing the proposal, Staff finds that the project meets the applicable review criteria for approval of a Conceptual PUD plan. The proposal is consistent with the goals of the AACP and the CMP by designing an addition that meets programmatic needs of the Wheeler and community arts groups while preserving the prominence of the historic Wheeler Opera House. Staff recommends approval of the Conceptual PUD request with conditions." PROPOSED MOTION: "I move to approve Resolution #2f, Series of 2009." CITY MANAGER COMMENTS: Iry 0IT:T O ITi 1 ZM1T A — Conceptual PUD Review Criteria. B — Planning and Zoning Commission Resolution 12, Series of 2009. C - Planning and Zoning Commission and Historic Preservation Commission meeting minutes dated June 24, 2009, July 8, 2009 and August 4, 2009. D — DRC comment. Revised 9/21/2009 320 East Hyman/ Wheeler Opera House Conceptual PUD Review Staff Memo Page 6 of 6 RESOLUTION N0. (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING CONCEPTUAL PLANNED UNIT DEVELOPMENT FOR THE PROPERTY LOCATED AT 320 EAST HYMAN AVENUE LOTS P, Q, R, AND S, BLOCK 81, CITY AND TOWNSITE OF ASPEN, COLORADO, COMMONLY KNOWN AS THE WHEELER OPERA HOUSE. Parcel ID: 2737-073-38-851. WHEREAS, the Community Development Department received and application from the Wheeler Opera House, 320 East Hyman Avenue, Aspen, CO represented by Gram Slaton, Executive Director, Wheeler Opera House; Farewell Mills Gatsch Architects, LLC; and Rowland + Broughton Architecture and Urban Design requesting Conceptual approval for a Planned Unit Development (PUD) plan for an addition to the existing Wheeler Opera House; and, WHEREAS, the subject property, the Wheeler Opera House is a local landmark located in the CC, Commercial Core Historic District; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Environmental Health Department, Parks Department, Parking Department , Aspen/Pitkin County Housing Authority, Public Works Department and Transportation Department as a result of the Development Review Committee meeting; and, WHEREAS, said referral agencies and the Aspen Community Development Department reviewed the proposed Conceptual PUD and recommended approval with conditions; and, WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD approval may be granted by the City Council at a duly noticed public hearing after considering recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, Conceptual PUD review by the Planning and Zoning Commission requires a public hearing and this application was reviewed at a public hearing on August 4, 2009 where the recommendations of the Community Development Director, the Aspen Historic Preservation Commission and comments from the public were heard; and, WHEREAS, during a regular meeting on August 4, 2009, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and recommended City Council approve the Conceptual Planned Unit Development by a five to one (5-1) vote, with the findings and conditions listed hereinafter; and, WHEREAS, the Aspen City Council has reviewed and considered the Conceptual Planned Unit Development on September 28, 2009, according to the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director and the recommendation of the Planning and Zoning Commission, and has taken and considered public comment at a public hearing; and, City Council Resolution No. _,Series 2009. Page 1 of 4 WHEREAS, the Council finds that the development review standards for a Conceptual PUD have been met, which includes height variation of 51' 2" measured to the top of the stairway corridor that provides rooftop access solely for maintenance purposes as long as certain conditions are implemented; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council approves the Conceptual Planned Unit Development for an addition to the western elevation of the Wheeler Opera House, subject to the conditions listed herein. Section 1: The approval is subject to the following conditions: 1. The Final PUD application shall include: 1) An application for Final PUD application and the proposed development is further subject to Final PUD Review, GMQS Review, Commercial Design Standard Final Review, and Major Development Final Review for a Historic Landmark pursuant to the Municipal Code. A pre -application conference with a member of the Community Development Department is required prior to submitting an application. 2) Delineation of all dimensional provisions to become requirements of the PUD. 3) A proposed PUD plan. 2. Prior to submitting an application for a Final PUD, the applicant shall make the following revisions to the development proposal: 1) Historic Preservation. Additional locations for the existing mechanical equipment on top of the Wheeler Opera House will be submitted as part of the Final PUD application. 2) Pedestrian/Public Use, Connections/Experience. Include a study of Pedestrian and Bike circulation and movement in the area to be provided. 3) Parking. A trip generation study and traffic impact study of the area with American Association of State of Highway Transportation Officials (AASHTO) numbers to be provided. Section 2: Buildine The final design shall meet adopted building codes and requirements if and when a building permit is submitted. Section 3: Engineerine Final design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. Detailed plans of drainage and utilities must be submitted as part of the Final PUD application. Section 4: Housine The final design shall be compliant with all section of the City of Aspen Municipal Code, Title 21. The Applicant commits to working with APCHA regarding employee generation rates and City Council Resolution No. _,Series 2009. Page 2 of 4 employee mitigation to be reviewed and approved during the Growth Management for an Essential Public Facility public hearings. Section 5: Fire Mitigation All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Section 6: Transportation A detailed Transportation Plan shall be submitted as part of the final PUD application. The operation plan should include the information listed in the Development Review Committee minutes and comments from July 22, 2009. Section 7: Public Works The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall meet adopted City of Aspen standards. Existing building connections may need to be abandoned and/or updated to meet current standards. Section 8: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Section 9: Environmental Health The state of Colorado mandates specific mitigation requirements with regard to asbestos. Additionally, code requirements to be aware of when filing a building permit include: a prohibition on engine idling, regulation of fireplaces, fugitive dust requirements, noise abatement and pool designs. Trip generation rates must be calculated pursuant to the standard Institute of Traffic Engineers Trip Generation rates and submitted as part of the Final PUD application. Additional detail is provided in the Development Review Committee minutes of July 22, 2009. Section 10: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 11 • School Lands Dedication and Impact Fees The Applicant shall pay all impact fees and the school lands dedication, if applicable, assessed at the time of building permit application submittal and paid at building permit issuance. Section 12: Parks A formal vegetation protection plan shall be required with the building permit application. An approved tree permit will be required before any demolition or access infrastructure work takes place. Further review and detail of excavation distances is necessary. All right -of way improvements shall meet city codes. Final layout of the plantings require Park Department approval. Additional detailed comments are included in the Development Review Committee minutes of July 22, 2009. Section 13: This Resolution shall not affect any existing litigation and shall not operate as an abatement of City Council Resolution No. _,Series 2009. Page 3 of 4 any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 14: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted, passed and approved this 28`h day of September, 2009. Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney Exhibit A — Elevations and site plan. Michael C. Ireland, Mayor. City Council Resolution No. Series 2009. Page 4 of 4 EXHIBIT A Chapter 26.445, PLANNED UNIT DEVELOPMENT Sec. 26.445.050. Review Criteria conceptual, final, consolidated and minor PUD. A development application for conceptual, final, consolidated, conceptual and final or minor PUD shall comply with the following standards and requirements. Due to the limited issues associated with conceptual reviews and properties eligible for minor PUD review, certain standards shall not be applied as noted. The burden shall rest upon an applicant to show the reasonableness of the development application and its conformity to the standards and procedures of this Chapter and this Title. A. General requirements. 1. The proposed development shall be consistent with the Aspen Area Community Plan. Overall, Staff finds that the proposed development is consistent with the Aspen Area Community Plan (AACP) and the adopted Civic Master Plan (CMP). The CMP works in tandem with the AACP and specifically functions as a guiding document for the future use of publicly -owned properties in Aspen. Staff finds that the Applicant does not go far enough in meeting some elements of the AACP and some recommendations of the CMP. At the Conceptual level, the application meets a number of AACP goals related to arts and culture, historic preservation, open space & environment, economic sustainability, and community character and design. The proposal addresses the majority of the recommendations and findings adopted in the CMP specifically for this project. Staff finds that the application does not fully address the Transportation portion of the AACP and Recommendation #3 of the CMP related to improvements and enhancements to adjacent public spaces. The applicant represents that the project is providing adequate housing to mitigate for the expansion. A one bedroom affordable housing unit is proposed on the third floor for an onsite employee. Developing affordable housing downtown meets the goals of the Managing Growth and Housing sections of the AACP which emphasize placing units within the Aspen Community Growth Boundary. The actual number of employees generated and required mitigation will be reviewed during the growth management process for an Essential Public Facility after Conceptual PUD is granted. Staff finds that at a Conceptual level, the Housing and Managing Growth chapters of the AACP are met and recommends further explanation of generation rates for the Growth Management reviews. The proposal to expand the existing Wheeler facility to provide more versatile performance spaces and, in turn increase arts and cultural programs, fully meets the Arts, Culture and Education chapter of the AACP and the Findings and Recommendations in the CMP. The AACP supports the continued "vibrancy of the arts in our community" and activities and education for youth. The downtown location of the expanded facility enhances vitality in Aspen's core and is easily accessible to all community members. ACRA and an information booth are incorporated in the ground floor program, which Exhibit A — PUD Review Criteria Page 1 of 13 supports the Findings and Recommendations of the CMP and enhances the Wheeler as a "natural point of orientation for visitors and locals." CMP Recommendation #2 asks that future uses accommodate as many additional needs of the local arts community as possible. The application proposes a smaller performance venue, multi -purpose room and versatile rooftop space for different community arts groups which enhances the mind aspect of the "Aspen Idea" of "mind body and spirit" by offering different types of programs to the community. A policy of the Economic Sustainability chapter is to "ensure government support of a diverse business and nonprofit community." The conversion of existing space in the Wheeler into commercial space meets CMP Recommendation 43 that "supports concepts for maintaining and/or enhancing the Wheeler Opera House building, adjacent commercial uses and the public spaces surrounding the Wheeler in order to contribute to the vitality of the area." Staff finds that these aspects of the AACP and CMP are met. The Historic Preservation chapter of the AACP states that "we must continue to build on what we have by authentically preserving historic structures and creating thoughtful new buildings that encourage and shape that feeling of historical continuity." The Wheeler Opera House is a signature historic building that represents Aspen's history. The project proposes to retain the existing interior stairway and original 19`h century entrance/exit doors and expand the existing building to the west in an effort to continue to "celebrate its core identity as a center for arts and culture," as stated in the CMP. The architectural details proposed for the addition need further refinement to be compatible with the existing Wheeler and downtown Commercial Core Historic District, which is a discussion for Final Review. Overall, Staff finds that the massing and scale are appropriate adjacent to the Wheeler Opera House. The Design Quality chapter of the AACP asks development to "retain and encourage an eclectic mix of design styles to maintain and enhance the special character of our community" and states as a goal to "make every public project a model of good development, on all levels, from quality design to positive contributions to the community fabric." The design intent and proposed program contributes to the community on many different levels. Staff finds that at Conceptual review both the Historic Preservation chapter and the Design Quality chapter are met. As stated in CMP Finding #1, "as the city's focal point for arts and culture, the Wheeler conveys an equal sense that the community is alive and evolving, and continues to celebrate its core identity as a center for arts and culture." The design of the addition has the ability to inspire the community, enhance the Historic District and further vitalize the western portion of downtown. Staff encourages the applicant to continue to develop the architectural details, fenestration and material palette for Final Review. A community goal for Parks, Open Space and the Environment is to "protect and enhance the natural environment." Furthermore, Finding #3 in the CMP states that "the view from the Wheeler Opera House towards Wagner Park and Aspen Mountain is a valuable resource and is protected in the City of Aspen Land Use Code." Staff finds that the proposed addition does not infringe upon any protected viewplanes and recommends that the Applicant design the addition to support the load of a future fourth floor to allow Exhibit A — PUD Review Criteria Page 2 of 13 future generations to decide whether an additional floor or rooftop access is appropriate (which would require an amendment to the PUD, which is a formal public hearing process.) Staff finds that the application does not fully address the Transportation portions of the AACP and Recommendation #3 of the CMP related to improvements and enhancements to adjacent public spaces. Staff recommends that the Applicant provide a detailed transportation plan at Final Review that studies pedestrian connections and movements between the Pedestrian Malls and the Wheeler. Staff recommends that the applicant continue to engage the public through a variety of media. CMP Recommendation #1 specifically states that "the Civic Master Plan Advisory Group supports the ongoing public process regarding the future use of the Wheeler Parcel." An open house for the public was held at the Wheeler in April and at Rowland + Broughton in July. A phone survey to weigh public support for an addition to the Wheeler was concluded at the end of August. Staff finds that this Recommendation needs further development throughout the upcoming reviews to be met. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. The proposed Wheeler expansion is located in the Commercial Core, which primarily supports commercial uses on the ground and second floors with residential uses on the upper floors. Staff finds that the proposed expansion to the existing arts and cultural venue, including commercial spaces at grade, ancillary office space, and lobby/performance spaces on the lower, ground and upper floors with an affordable housing unit, is consistent with the character of existing land uses in the surrounding area. Staff finds this criterion to be met. 3. The proposed development shall not adversely affect the future development of the surrounding area. Staff believes that this development will not adversely affect the future development of the area. Staff finds this criterion to be met. 4. The proposed development has either been granted GMQS allotments, is exempt from GMQS, or GMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final PUD development plan review. Not Applicable. The Applicant will be required to submit a Growth Management application as part of the Final PUD Application. As an Essential Public Facility, the Planning and Zoning Commission establishes the employee generation for the project and City Council determines the appropriate affordable housing mitigation for the project. B. Establishment of Dimensional Requirements: Exhibit A — PUD Review Criteria Page 3 of 13 The final PUD development plans shall establish the dimensional requirements for all properties within the PUD as described in General Provisions, Section 26.445.040, above. The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During review of the proposed dimensional requirements, compatibility with surrounding land uses and existing development patterns shall be emphasized The PUD development plans establish dimensional requirements for all properties in a PUD. The proposed dimensional requirements are listed below. Please note that a height variation for an access stairway to maintain the green roof is the only request in this proposal. CC Zone District Existing Proposed Maximum Development Development Requirements Lot Size 12,000 sq. ft. No change No requirement proposed 4' for the addition Front Yard (south/ 01 0 for existing No requirement q Hyman) Setback bldg. Front Yard (east/ 01 no change No requirement Mill) Setback proposed West Setback 60' 0' No requirement Rear Yard Setback 0' 0' No requirement 42' to pate 55' 7" to the P of Height cornice, about 7l' access stair for 42' to highest point green rooff solar anels 2.75: 1 or 1.72:1 or 2.67: 1 or 33,000 sq. ft. Total 20,655 sq. fr. 32,094 sq. fr. cumulative maximum Commercial 1.28:1 or 1.65:1 or 2:1 or 24,000 sq. ft. Floor Area Use 15,386 sq. ft. 19,816 s . ft. Ratio Affordable n/a 0.21:1 or No requirement. Housing 2,521 s . ft. Arts, Cultural 0.44:1 0.81:1 2.75:1 and Civic Use or 5,269 sq. ft. or 9,757 sq. ft. Exhibit A — PUD Review Criteria Page 4 of 13 Existing Proposed CC Zone District Development Development Maximum Requirements Public Amenity Approved by HPC and P&Z via Commercial Design Standard Space Review. The Commissions found that the entire building is a Public Amenity, pursuant to Section 26.575.030.C.4. Off Street Parking Established through Special Review during Final Review processes at HPC, 0 parking spaces are proposed. 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the property: a. The character of, and compatibility with, existing and expected future land uses in the surrounding area. See discussion from A.1 above b. Natural or man-made hazards. No known hazards exist on the lot. Staff finds this criterion to be met. c. Existing natural characteristics of the property and surrounding area such as steep slopes, waterways, shade, and significant vegetation and landforms. Staff finds this criterion to be met. d. Existing and proposed man-made characteristics of the property and the surrounding area such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. The addition is located in the Commercial Core and is compatible with similar commercial/mixed use development. Staff recommends that the applicant continue to study pedestrian circulation and movement and propose a detailed Transportation Plan for Final Review. Overall, Staff finds this criterion to be met. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding area. No open space is currently proposed on -site. The Commercial Core Zone District does not require a specific amount of site coverage, which is consistent with traditional historic development downtown. A small setback is provided along Hyman Avenue, the pedestrian malls and Wagner Park are in close proximity to the Exhibit A — PUD Review Criteria Page 5 of 13 addition. Staff finds that the proposed Conceptual Plan is appropriate to the character of the proposed PUD and surrounding context. 3. The appropriate number of off-street parking spaces shall be established based on the following considerations: The off-street parking space requirement will be established during the Special Review process for an Essential Public Facility and is not part of the PUD application. a. The probable number of cars used by those using the proposed development including any non-residential land uses. Not applicable. b. The varying time periods of use, whenever joint use of common parking is proposed. Not applicable. c. The availability of public transit and other transportation facilities, including those for pedestrian access and/or the commitment to utilize automobile disincentive techniques in the proposed development. Not applicable. d. The proximity of the proposed development to the commercial core and general activity centers in the city. Not applicable. 4. The maximum allowable density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced if.• a. There is not sufficient water pressure, drainage capabilities or other utilities to service the proposed development. b. There are not adequate roads to ensure fire protection, snow removal and road maintenance to the proposed development. Staff finds that there is no need to reduce the maximum allowable density for the Wheeler expansion. 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density of a PUD may be reduced if.• a. The land is not suitable for the proposed development because of ground instability or the possibility of mudflow, rockfalls or avalanche dangers. Exhibit A — PUD Review Criteria Page 6 of 13 b. The effects of the proposed development are detrimental to the natural watershed, due to runoff, drainage, soil erosion and consequent water pollution. c. The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d. The design and location of any proposed structure, road, driveway or trail in the proposed development is not compatible with the terrain or causes harmful disturbance to critical natural features of the site. At this time, Staff does not find that the criteria above exist for the expansion project and as such finds that the density does not need to be reduced. 6. The maximum allowable density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with its surrounding development patterns and with the site's physical constraints. a. The increase in density serves one or more goals of the community as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b. The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identified in Subparagraphs 4 and 5, above, those areas can be avoided or those characteristics mitigated c. The increase in maximum density results in a development pattern compatible with and complimentary to, the surrounding existing and expected development pattern, land uses and characteristics. Notes: a. Lot sizes for individual lots within a PUD may be established at a higher or lower rate than specified in the underlying Zone District as long as, on average, the entire PUD conforms to the maximum density provisions of the respective Zone District or as otherwise established as the maximum allowable density pursuant to a final PUD Development Plan. b. The approved dimensional requirements for all lots within the PUD are required to be reflected in the final PUD development plans. No increase in the maximum density is proposed. Staff finds this criterion to be met. C. Site Design. The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man-made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man-made features of the site which are unique, provide visual interest or a specific reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. Exhibit A — PUD Review Criteria Page 7 of 13 See discussion in part A.1 above. In addition to the expansion, the applicant proposes restoration of deteriorated stone and brickwork on certain areas of the exterior. Staff recommends that the applicant relocate the existing rooftop mechanical equipment to further enhance and preserve the iconic landmark, to be reviewed during Final Review. Staff finds this criterion to be met. 2. Structures have been clustered to appropriately preserve significant open spaces and vistas. The proposed expansion does not interfere with any protected viewplanes as defined in Land Use Code Section 26.435.050 Mountain view plane review. Staff finds this criterion to be met. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. The proposed addition is oriented perpendicular to the street and is generally consistent with historic development patterns for commercial buildings downtown. Staff recommends that the applicant study pedestrian movements and circulation for discussion during Final Review. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. Staff finds this criterion to be met. 5. Adequate pedestrian and handicapped access is provided. Staff finds this criterion to be met. The Applicant proposes improvements and upgrades to the internal accessibility of the Wheeler that includes removing the existing elevator (currently located on the western wall.) Relocating the elevators into the new addition not only creates better circulation for patrons, but it also exposes the historic corner of the Wheeler Opera House and meets Historic Preservation goals. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. The applicant proposes a green roof to mitigate for some of the storm water drainage and commits to working with the Engineering Department to meet site drainage requirements. Staff finds that this criterion is met. 7. For non-residential land uses, spaces between buildings are appropriately designed to accommodate any programmatic functions associated with the use. Exhibit A — PUD Review Criteria Page 8 of 13 Staff finds that this criterion is met. D. Landscape Plan. The purpose of this standard is to ensure compatibility of the proposed landscape with the visual character of the city, with surrounding parcels, and with existing and proposed features of the subject property. The proposed development shall comply with the following: The Applicant proposed a green roof as part of the original Conceptual application. The proposed expansion fills most of the lot; however some landscape features may be incorporated into the front setback of the addition. A detailed landscape plan will be provided as part of the Final PUD Application. 1. The landscape plan exhibits a well designated treatment of exterior spaces, preserves existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. Staff recommends that the applicant provide a detailed landscape plan as part of the Final PUD Application. 2. Significant existing natural and man-made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. The Applicant has stated they will comply with all Park's Department requirements. Staff finds this criterion to be met. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. The Applicant will provide a final landscape plan in with the Final PUD. This will ensure that vegetation proposed for removal is mitigated. Staff finds this criterion to be met. E. Architectural Character. 1. Be compatible with or enhance the visual character of the City, appropriately relate to existing and proposed architecture of the property, represent a character suitable for and indicative of the intended use and respect the scale and massing of nearby historical and cultural resources. At a Conceptual level, Staff finds that the proposed massing, height and scale is compatible with the Wheeler Opera House, the Commercial Core Historic District and is indicative of the Arts, Cultural and Civic Use. The height of the addition is lower than the historic Wheeler, which introduces a height variation to the site and successfully maintains the prominence and visibility of the historic Wheeler from the street. The front facade height is well below that of the historic Wheeler and creates a step between the Exhibit A — PUD Review Criteria Page 9 of 13 Motherlode and the Wheeler. Staff recommends that the applicant restudy the vertical material bands or "bookends" proposed at either end of the addition, the fenestration and material palette for discussion during Final Review to enhance the visual character of the Historic District. Staff finds that this criterion is met. 2. Incorporate, to the extent practical, natural heating and cooling by taking advantage of the property's solar access, shade and vegetation and by use of non- or less -intensive mechanical systems. The proposed addition is oriented north -south with the front facade facing southward to maximize solar gain. High performance insulated glazing is proposed for the south facade and the applicant is working with the Building Department and the Canary Initiative to design a sustainable addition through energy use, storm water treatment and material selection. Staff finds this criterion to be met at the Conceptual level. 3. Accommodate the storage and shedding of snow, ice and water in a safe and appropriate manner that does not require significant maintenance. The proposed addition fills most of the lot, so the majority of water collection will occur on the flat roof. The applicant is working with the Engineering Department to design a green roof that mitigates stormwater run-off for further review during Final PUD. Staff finds this criterion to be met at the Conceptual level. F. Lighting. The purpose of this standard to ensure the exterior of the development will be lighted in an appropriate manner considering both public safety and general aesthetic concerns. The following standards shall be accomplished: 1. All lighting is proposed so as to prevent direct glare or hazardous interference of any kind to adjoining streets or lands. Lighting of site features, structures, and access ways is proposed in an appropriate manner. The Civic Master Plan recommends "the installation of a modest lighting array on the Wheeler building to call attention to the historic structure at night, and celebrate its iconic status." The Applicant illustrated a preliminary lighting concept that emphasizes the architectural details and stonework on the Wheeler Opera House. Staff finds that lighting the architectural details of the existing Wheeler enhances and reinforces its prominence as an iconic building. The proposed addition is primarily glazing along the street facing facade. The applicant is researching glass that does not negatively transmit light onto the street to minimize light pollution and adverse impacts on the neighborhood. Staff recommends that the applicant continue to study the transmittance of lighting from the addition as part of a detailed plan to be submitted as part of the Final PUD application. 2. All exterior lighting shall be in compliance with the outdoor lighting standards unless otherwise approved and noted in the final PUD documents. Up -lighting Exhibit A — PUD Review Criteria Page 10 of 13 of site features, buildings, landscape elements and lighting to call inordinate attention to the property is prohibited for residential development. The PUD will comply with all lighting regulations in place. A more detailed plan will be provided as part of the Final PUD. C. Common Park, Open Space, or Recreation Area. If the proposed development includes a common park, open space, or recreation area for the mutual benefit of all development in the proposed PUD, the following criteria shall be met: 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. Not applicable, the undeveloped section of the parcel is not recognized as a common park, open space or recreation area. 2. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. Not applicable. 3. There is proposed an adequate assurance through a legal instrument for the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. Not applicable. H. Utilities and Public facilities. The purpose of this standard is to ensure the development does not impose an undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following: 1. Adequate public infrastructure facilities exist to accommodate the development. The Water and Sanitation Departments reviewed this application and determined there is adequate service for this development. A few upgrades, abandoning and reconfiguring of existing lines will need to take place, which will be addressed in greater detail at Final PUD. The applicant is working closely with the applicable Departments to satisfy Exhibit A — PUD Review Criteria Page I I of 13 requirements and bring existing conditions into compliance. Staff finds this criterion to be met at the Conceptual level. 2. Adverse impacts on public infrastructure by the development will be mitigated by the necessary improvements at the sole cost of the developer. At this time no adverse impacts are anticipated. This will be addressed in greater detail at Final PUD. 3. Oversized utilities, public facilities, or site improvements are provided appropriately and where the developer is reimbursed proportionately for the additional improvement. This criterion will be addressed at Final PUD when a finalized site plan and associated materials are available for City Departments to review. L Access and Circulation. The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network, provides adequate pedestrian and recreational trail facilities and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through an approved private road, a pedestrian way, or other area dedicated to public or private use. The Wheeler parcel is located at the corner of Hyman and Mill Streets in the Commercial Core Historic District. Staff finds that this criterion is met. 2. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. The CMP recommends "improvements to public spaces around the Wheeler, including sidewalks, streets and the pedestrian mall, which enhance the pedestrian experience." The applicant is collaborating with the Transportation and Engineering Departments to provide the necessary improvements to accommodate the proposed development. This criterion will be fully addressed at Final PUD when a finalized Transportation Plan and associated materials are available for City Departments to review. 3. Areas of historic pedestrian or recreational trail use, improvements of, or connections to, the bicycle and pedestrian trail system, and adequate access to significant public lands and the rivers are provided through dedicated public Exhibit A—PUD Review Criteria Page 12 of 13 trail easements and are proposed for appropriate improvements and maintenance. Not applicable. 4. The recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths, and transportation are proposed to be implemented in an appropriate manner. Not applicable. 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public and emergency access. Not applicable. 6. Security gates, guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical. Not applicable. Exhibit A — PUD Review Criteria Page 13 of 13 EXHIBIT B RECEPTION#: 562174, 08121l2009 at 03:48:43 PM, 1 OF 4, R $21.00 Doc Code RESOLUTION RESOLUTION NO. 12 Janice K. Vos Caudill, Pitkin County, CO (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN PLANNING AND ZONING COMMISSION RECOMMENDING CITY COUNCIL APPROVE A CONCEPTUAL PLANNED UNIT DEVELOPMENT FOR THE WHEELER OPERA HOUSE, 320 EAST HYMAN AVENUE, LOTS P, Q, R, S, BLOCK 81, CITY AND TOWNSITE OF ASPEN, CO, PITKIN COUNTY, COLORADO PARCEL NO.2737-073-38-851. WHEREAS, the applicant, Wheeler Opera House, 320 East Hyman Avenue, Aspen, CO represented by Gram Slaton, Executive Director, Wheeler Opera House; Farewell Mills Gatsch Architects, LLC; and Rowland + Broughton, Architecture and Urban Design has requested Commercial Design Standard Conceptual Review for the property located at 320 East Hyman Avenue, Lots P, Q, R and S, Block 81, City and Townsite of Aspen, Colorado; and, WHEREAS, the Community Development Department received an application from the Wheeler Opera House requesting approval of requesting the Planning and Zoning Commission recommend approval of a Conceptual Development Plan for a Planned Unit Development (PUD) for an addition to the existing building; and, WHEREAS, the subject property, the Wheeler Opera House is a local landmark located in the CC, Commercial Core Historic District; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Environmental Health Department, Parks Department, Parking Department , Aspen/Pitkin County Housing Authority, Public Works Department and Transportation Department as a result of the Development Review Committee meeting; and, WHEREAS, said referral agencies and the Aspen Community Development Department reviewed the proposed Conceptual PUD and recommended approval with conditions; and, WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD approval may be granted by the City Council at a duly noticed public hearing after considering recommendations by the Planning and Zoning Commission, the Community Development Director, and relevant referral agencies; and, WHEREAS, Conceptual PUD review by the Planning and Zoning Commission requires a public hearing where the recommendations of the Community Development Director, Aspen Historic Preservation Commission and comments from the public were heard; and, WHEREAS, during a regular meeting on August 4, 2009, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and recommended City Council approve the Conceptual Planned Unit Development by a five to one (5-1) vote, with the findings and conditions listed hereinafter; and, WHEREAS, Conceptual PUD approval shall only grant the ability for the applicant to submit a Final PUD application and the proposed development is further subject to Final PUD PZ Resolution 12, Series of 2009 August 4, 2009 Page 1 of 4 EXHIBIT 6 EXHIBIT B review, GMQS Review, Commercial Design Standard Final Review, Major Development Final Review for a Historic Landmark, and Subdivision approval pursuant to the Municipal Code; and, WHEREAS, an application was submitted for a four story addition to the existing Wheeler Opera House proposed to be 51'2" to the top of the fourth floor roof and 54'2" to the top of the elevator with a proposed floor area of 34, 469 square feet, which includes a subgrade performance venue, lobby spaces, office spaces, the conversion of existing box office spaces to commercial, one affordable housing unit with one bedroom, a versatile mixed media room and a fourth floor artist apartment/ community room with public rooftop access; and, WHEREAS, the Commission finds that the development review standards for a Conceptual PUD have been met, which includes height variation for a 4`h floor stairway corridor providing rooftop access for maintenance only as long as certain conditions are implemented. NOW, THEREFORE BE IT RESOLVED that the Planning and Zoning Commission recommends that the City Council approve the Conceptual Planned Unit Development, subject to the conditions listed in Section I below. Section 1• The approval is subject to the following conditions: 1. The Final PUD application shall reflect and demonstrate compliance with the findings of the Commission, as described above for the 4'h floor with maintenance access only, as shown in Alternate 44 on August 4, 2009. 2. The Final PUD application shall include: a. An application for Final PUD application and the proposed development is further subject to Final PUD review, GMQS Review, Commercial Design Standard Final Review, Major Development Final Review for a Historic Landmark, and Subdivision approval pursuant to the Municipal Code. A pre -application conference with a member of the Community Development Department is required prior to submitting an application. b. Delineation of all dimensional provisions to become requirements of the PUD. c. A proposed subdivision plat and PUD plans 3. Prior to submitting an application for a Final PUD, the applicant shall make the following revisions to the development proposal as identified by the Planning and Zoning Commission: a. Historic Preservation. Additional locations for the existing mechanical equipment on top of the Wheeler Opera House will be submitted as part of the Final PUD application. b. Pedestrian/Public Use, Connections/Experience. Include a study of Pedestrian and Bike circulation and movement in the area to be provided. PZ Resolution 12, Series of 2009 August 4, 2009 Page 2 of 4 EXHIBIT B �1:IU7147 c. Parking. A trip generation study, traffic impact study of the area with American Association of State of Highway Transportation Officials (AASHTO) numbers to be provided. Section 2: Building The final design shall meet adopted building codes and requirements if and when a building permit is submitted. Section 3: Engineering Final design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. Detailed plans of drainage and utilities must be submitted as part of the Final PUD application. Section 4: Housing The final design shall be compliant with all section of the City of Aspen Municipal Code, Title 21. Section 5: Fire Mitigation All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Section 6: Transportation A detailed Transportation Plan shall be submitted as part of the final PUD application. The operation plan should include the information listed in the Development Review Committee minutes and comments from July 22, 2009. Section 7: Public Works The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall meet adopted City of Aspen standards. Existing building connections may need to be abandoned and/or updated to meet current standards. Section 8: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Section 9: Environmental Health The state of Colorado mandates specific mitigation requirements with regard to asbestos. Additionally, code requirements to be aware of when filing a building permit include: a prohibition on engine idling, regulation of fireplaces, fugitive dust requirements, noise abatement and pool designs. Trip generation rates must be calculated pursuant to the standard Institute of Traffic Engineers Trip Generation rates and submitted as part of the Final PUD application. Additional detail is provided in the Development Review Committee minutes of July 22, 2009. PZ Resolution 12, Series of 2009 August 4, 2009 Page 3 of 4 EXHIBIT 6 EXHIBIT B Section 10: Exterior Liehtine All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 11• School Lands Dedication and Impact Fees The Applicant shall pay all impact fees and the school lands dedication, if applicable, assessed at the time of building permit application submittal and paid at building permit issuance. Section 12: Parks A formal vegetation protection plan shall be required with building permit application. An approved tree permit will be required before any demolition or access infrastructure work takes place. Further review and detail of excavation distances is necessary. All right -of way improvements shall meet city codes. Final layout of the plantings require Park Department approval. Additional detailed comments are included in the Development Review Committee minutes of July 22, 2009. Section 13: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 14: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Commission at its regular meeting on August 4, 2009. APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: 4im ue, Special Counsel Stan Gibbs, Vice- Chair ATTEST: ckie Lothian, Deputy City Clerk PZ Resolution 12, Series of 2009 August 4, 2009 Page 4 of 4 EXHIBIT B EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24 2009 Chairperson, Michael Hoffman called the meeting to order at 5:00 p.m. Commissioners in attendance: Brian McNellis, Sarah Broughton, Jay Maytin. Ann Mullins and Nora Berko were excused. Planning & Zoning Commission: Michael Wampler, LJ Erspamer, Stan Gibbs, Cliff Weiss, Bert Myrin and Brian Speck Staff present: John Worcester, City Attorney Amy Guthrie, Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk Sarah reused herself because her firm is the local architects on the project. LJ Erspamer stated that he is an usher for the Wheeler Michael Hoffman stated that his wife works at the Wheeler about four hours every other month. Also my son Noah was on the Wheeler board for a period of time. Jay said one of his clients is Bentley's at the Wheeler but the expansion has nothing to do with Bentley's. 320 E. Hyman Ave. Wheeler Opera House — Jt. Conceptual Commercial Design Review, HPC Major Development Conceptual Review Michael Schnoering, Michael Farewell Michael Schnoering said at the last meeting we came away with some conclusions. The primary conclusion was that this project, the new construction should be differential and be a subordinate structure and not upstage the Wheeler. Out of that we came up with six specific issues that relate to that. l . Building out to the street line of the building. There was concern about building out to the fagade line of the Wheeler. 2. The amount of construction on the upper level. There were apartments and the concern was the bulk and mass of the building. 3. The amount of glazing and light spill issues and the amount of transparency. EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 4. The historic use of the Wheeler Opera house as the entry to the theatre. Is there a way to come in through the historic building and provide all the new amenities that we are providing. 5. The public access to the upper level of the building. Could the public have access to a roof garden. 6. Infill structure and where would buses park and how is the service being made to the building and other utilities. We have revised the submission and have pushed back the facade about ten feet. This gives up a broader entry area and sidewalk area in front of the main entrance of the building. If we set the building back ten feet we need to make a corner connection on the west corner. There was also a question of entry and access. Ideally you would want to go in through the historic facade but we do not see a way to do that functionally or gracefully. Originally the fourth floor showed three apartments and we are now proposing one apartment for the artists. There has also been discussion about using the space as a public amenity or outdoor court. We can do that in a limited way. If it was totally public access the stairs would have to be larger and technically a larger elevator to get everyone up and down. That would gobble up square footage in a tightly compressed plan. We are not recommending that the entire roof be given over to public use. We can have a lower use. The apartment could be used for receptions with its patio. The issue of transparency on the facade. We are passionate that this should be a stone facade. We have reduced the transparency about 20% and added stone on the eastern wall and cornice. Slides were presented showing the setbacks and different historic buildings with additions. The scheme with the setback works with the Mother Lode and Wheeler. It would become extremely problematic if we setback were any larger than ten feet. Proof of publication — Exhibit I Sara said a site visit occurred April 6'h with Planning & Zoning and HPC. The lot is a 12,000 square foot lot. We are dealing with the joint commissions commercial design standards. Utility and trash service, public amenity and projects compliance with the adopted design guidelines which deals with the design and placement of the addition. We are talking about the size and shape of the addition and the location on the lot and does it meet the guidelines. Overall the Community Development dept. feels the project is moving in a positive direction. In terms of the alignment and location the 2 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 building is setback from the property line to provide for public amenity space. We recommend further design development in order to make this a more active public gathering space and to meet guideline 6.8. The request for the reduction of public amenity space is appropriate. Building form: They are proposing a flat roof which is typical for the style of development in our downtown. Staff is concerned with the curved element which is between the new and old construction and we recommend a restudy. The curved element is somewhat foreign. Height: Height and scale are appropriate and meet guideline 6.28. It is achieved through the setback of the fourth floor and the proposed addition which is below the height of the historic Wheeler. The Wheeler is one of the tallest buildings in town and as such it can support a substantial addition. The finishes can be addressed for final review and we feel the perception of the mass can be reduced by working with some of the pieces. We also feel the proposed height softens the transition between the Mother Lode and Wheeler. Entrance: Guideline 6.34 recommends that an iconic structure is preserved and enhanced. We are very concerned about the relocation of the primary entrance from the historic Wheeler into the addition. We find that the dramatic entrance proposed detracts from the historic building and inappropriate for this setting. The primary entrance to the Wheeler should remain so that the addition remains an ancillary function so we are not moving all of the function away from the historic Wheeler and the publics' perception of the historic landmark. We do recommend restudy of the roof top access in order to enhance guideline 6.34 and the public's experience with the historic resource. Sara said the crucial topics that we hope to give feedback to the applicant on tonight are location, height and scale of the proposed addition and the relationship to the context of the historic wheeler. Overall we recommend continuation to July 8th. LJ Erspamer asked about purchasing the unit next door for the artist and possibly that would be cheaper than building the fourth floor. EXHIBIT C PSZ AND HPC MEETING MINUTES 00.1 ncy JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 Gram Slaton said legally we cannot use that money for any other purchases. LJ Erspamer talked about modulation. On the Mother Lode side you have a large wall and is there a way to step the west wall down to be more in harmony with the building next door down without impacting the interior. wall facing City Hall. I don't know how you would step it You also see that on the fire station Michael Schnoering said the wall is fire rated wall and taking out additional volume affects the interior program. LJ Erspamer also stated that the glass is a concern on the front and how it fits in with the fagade and the lights at night. What is the position of the City on height. Sara said the height is 54.2 feet to top of the elevator shaft and 51.2 feet to the top of the fourth floor apartment and the historic Wheeler is 55.7 feet tall to the cornice and 71 feet tall to the highest point. The adjacent Mother Lode is 40.11 to the top of the third floor which is located at the rear. Cliff Weiss said the west wall that is part firewall with the Mother Lode it is exposed a ¢reat deal. Can there be glass where the wall is exposed. Sara pointed out that you cannot have openings on a firewall because of the IBC. Michael Schnoering explained that shared party walls are part of the historic pattern of development. Michael asked the applicant about the curved element between the two buildings. Michael Schnoering said it is a challenge trying to make the re- entrance corner. We could refine the profile a little but it needs to be something softer than square. The curvilinear gave a connection shape back to the Wheeler but the form is also different. We can restudy that but we need some kind of volume there. EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24 2009 Jay asked about the roof top as a public amenity. Michael Schnoering said it is tied into the number of people that would be allowed to go to the roof top. Three hundred people would require major vertical circulation and we simply cannot accommodate that in the building. Something less than 100 might make use of the apartment as a multi use space. That could be accommodated without major circulation elements. There are costs involved having a roof space for people. The aspiration for larger numbers will be problematic. Jay asked how feasible the public rooftop access would be without the apartment? Michael Schnoering explained that the same issues would come up. We would have to have two stairs up, two means of egress from that space as well as an elevator. At that point you are bringing up major structures to that level. Michael said he is sympathetic to both sides of the discussion on the entryway. There are historic structures where additions have been made and the artifacts become appendages and I have the feeling this might happen here. How can we avoid creating a dead end in the historic entrance. Michael Schnoering said the plan is to have the space that is now the lobby be a tenant space, which will be a commercial use which is a desirable thing on the street level. The historical entry is the round arched opening to the monumental stair. It is too tight for an effective entry and that is why we moved away from it. There is no historical argument for keeping the entry as is now. The new entry will relate to the character of the existing building but will give all the amenities such as proper ticket office and circulation. We weight these things very carefully and this is a better solution. Michael Farewell said the historic entry in the future will perform as it is now. It will be a place where people spill out from the show and you still have access from the inside. Brian said everyone floods out of the Wheeler and the idea of recessing the secondary fagade back kind of gives a gateway, a place where people can gather and sit. 5 EXHIBIT C PB.Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 LJ Erspamer asked if this was a private application what would be the requirements to have this kind of height. Sara said they would still need to go through a PUD to vary the height. The applicant is going through the proper procedure process. Bert Myrin said the purchase of the Mother Lode was on the 2003 ballot yet tonight we heard that RETT money can't be used for offsite purchases. Why was it on the balot. John Worcester, city attorney said in order to use the RETT money for anything other than what was in the original ballot it has to go to a vote. It could go to a vote and you could amend the RETT language. The issue then becomes whether or not it is a new RETT which is prohibited by Tabor. In 2003 the issue was whether or not the RET"f money that was available then could be used for that purpose, that meaning the purchase of the Mother Lode. I at that time pined that city council ought to seek approval from the voters to amend the original RETT and that is why it was put on the ballot. Chairperson, Michael Hoffman opened the public hearing. Bill Wiener, retired architect. 701 Gibson — I only address problems and bring them up when I now there is a solutions. You have floor to floor, scissor, two ride, three run stair and move the penetration further back and it would relate to the lobby. That would get rid of the curve. All of the slides we saw the new addition was articulated from the hold with a glass spacer. That is what we need here and get rid of that curve. Possibly an arch in the front where all the glass is might give a better tie into the community. The public space is the lobbies. You need to see where you are going and be pulled there. Using the old stair entry you can't see where you are going. Harris Hall opens up in the summer and that might be a possibility here and make the sidewalk come in and make it part of the lobby. The problem is that you are trying to put too much of a building on too small of a site within too small of a box. The apartment is a luxury and it would be cheaper to get a suite in one of the big hotels which has parking, room service and maid service. It would free up space and make the roof garden more possible. EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24,200 The first floor is pretty high and possibly the upper floors could project over the alley. That would give you more volume. Ruben Hedlin, part time resident of Aspen. I am on the board of landmarks in Chicago and Roosevelt University. This is a good opportunity to create a lobby that is consistent with the function and the historic importance and the current importance of the Wheeler Opera House. Suzanne Foster said the green space where you have pushed back the fagade doesn't seem appropriate to have grass. If this were a more paved situation where you had more benches on the outside you would get less trampling. It would more of a civic space. Lisa Markalunas said she has continued concerns over mass and scale. We all agree that the Wheeler Opera House is one of the most significant buildings in town and it requires the utmost review process. I am not sure you intent to address parking but the Wheeler Opera House right now has significant parking issues and on existing businesses. I agree with staff on the historic entrance and the curved element and the contemporary nature of the addition and the glazing. I don't know that the addition has to be entirely contemporary. I would be interested in the split numbers of lobby space, office space and housing. For the outdoor lobby space that is a nice amenity that would give the Wheeler some breathing room and give you some public access. I am amazed that the public amenity requirement is being dropped from 3,000 square feet to 600 square feet. Staff recommends that it could be a more usable space. On Gram Slaton's memo of March I" it mentions that the historic venue will see a significant amount of square footage open up for rental potential. It is odd that we are talking about such mass and scale to a building when we might have opportunity to accommodate some of those uses within the existing building. Perhaps it might be worth exploring the RETT requirements and uses in another building and not impact the Wheeler so significantly. With the City sitting as judge and jury on its own project it is important that the citizens weight in on what they want to see happen with the Wheeler Opera house. Junee Kirk said she is concerned about the height and scale of this historic building. Part of our pattern of development has been to preserve our iconic buildings and the surrounding space. In all the iconic buildings there is a 7 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 certain amount of open space that preserves the integrity of the historic structure. Using the existing space for offices in the existing Wheeler Opera house is a good suggestion. Ed Forein said he is a member of the Aspen Community Theater board. Ed applauded the architect and the Wheeler board for coming up with a design that appropriate in scale for the neighborhood yet compliments the Wheeler opera house. As a performer I am grateful that we will have a potential for performances and rehearsal space in the addition. This is an excellent amenity to provide performance space for community arts groups. The common areas and lobby areas are very important and in some ways the performances go on in the lobby and the community will use that as a gathering space. I caution the HPC to not make further constraints in this building. The original iteration has much more welcoming gathering areas and the architects have done all they can by setting back the entrance. Common areas where people gather cannot be confined and that would be a detriment to the addition and to the Wheeler. Chairperson, Michael Hoffman closed the public hearing. Commissioner comments: Cliff Weiss pointed out his two concerns #1 public amenity, #2 mass and height. Bert said he feels the entire building is a public amenity and having space outside seems to be in excess. Bert also said entering from the Wheeler entrance is preferable. Brian said he is willing to give on the pubic amenity space. The Wheeler is a public amenity and creating some space on the street people will use it more. Cliff pointed out that the roof should be the public amenity space. He is opposed to the apartment. Jay said he sees the reason to have the setback off the street. This building and the use of the building creates a public amenity. Reducing the public EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24,200 amenity from 3,000 to 600 hundred feet is OK. It is inappropriate to have the apartment. Michael agreed with Jay that the setback is successful and subordinate. Mass and scale: Bert said all the buildings in town seem like they are one-story too tall. The space underneath the existing Wheeler should be considered in the design. LJ Erspamer supported Bert's comments. Cliff commented that the fourth floor gives nothing to the community and would only be used in the summer. Brian pointed out that downtown is conducive to density. In the elevations they are stepped back and the addition is submissive to the Wheeler. I am not offended by the fourth floor as it is set back a good degree that is not opposing. I am concerned about seeing it from the North and I totally understand the needs of the program. Jay said the height of the fourth floor is concerning. It is important to utilize what you already have. The square feet under the building should be used for some purpose. If you could use the space under the Wheeler to reduce the mass it would definitely be appropriate. Utilize what you have already and then come back with what you "really" need. Brian said there is concern that the Wheeler has stood alone. The Wheeler was constructed to have an addition on the side. Michael said his concern is the blank west wall. Curvilinear element: Bert agreed with staff that the curved element is out of character and could be eliminated by moving the building forward and dropping the height. Cliff said the curvilinear element is an incongruous element and not appropriate. Jay also said the curvilinear wall does not fit with the design. 9 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 Brian suggested that the architects look at a different feature for the curvilinear wall. Ten feet back is fantastic but it looks like that could be twiddled down to five feet to supply more lobby space. Entrance: Bert agreed with staff that the entrance needs restudied. Possibly move the connections on the first floor and give more play with the existing building. Cliff said his priority is the lobby area and it should be used as a welcoming area. Jay recommended that the entrance be restudied. Brian said the entrance accessed from the historic opera house should only be used in a functional way. If the main entrance has to be off the second building it has to be a fantastic entrance. Michael Schnoering said the entry is the core of the project. It needs proper access and entering from the existing building would destroy the interior historic components. LJ Erspamer excused himself. MOTION: Jay moved to continue 320 E. Hyman, Wheeler Opera House addition to July 8`h; second by Brian Speck. All in favor, motion carried 8-0. Roll call: Michael Wampler, yes; Stan Gibbs, yes; Bert Myrin, yes; Cliff Weiss, yes; Brian Speck, yes; Michael Hoffman, yes, Jay Maytin, yes. Brian McNellis yes. 6:45 Planning & Zoning dismissed. Conceptual Development review and Special review for parking Michael said providing parking on -site is inappropriate. We need more information because we do not know the impacts on the neighborhood for parking. 10 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 MOTION: Brian moved to continue the conceptual review and special review for parking on 320 E. Hyman until July e; second by Jay. All in favor, motion carried. Jay suggested some kind of bicycle storage on -site. Michael Schnoering said the team does not want to destroy the historic fabric of the Wheeler Opera House. We don't want to make a lobby that was not originally there. 701 S. Aspen Street, Original Lift Ticket Office within Willoughby Park —Demolition review Michael Hoffman opened the public hearing. There were no public comments and the public hearing was closed. MOTION: Brian moved to continue 701 S. Aspen Street and the public hearing until July 22"d; second by Jay. All in favor, motion carried. 219 S. Third Street —discussion Amy pointed out that the HPC did not support the 473 square feet. Suzanne Foster went to council and asked for a reconsideration. Council asked that HPC review the proposal. Suzanne is asking for 291 square feet instead of 473 square feet. Suzanne Foster — Part of what you are doing here tonight is not just saving this Modem Chalet but having a say in what the structure next door will be with heights and roof lines etc. I truly hope we can make a success of Ord. #48 and pave the road for others. At the council meeting we had a 30 day time period in which to accept their negotiation and we did not accept the negotiation that evening. If you recommend the 2207 square feet and that is the 291 square foot bonus and council approves that then I will accept that on the spot and I won't need a waiting period for it. Chairperson, Michael Hoffman opened the public hearing. 1� EXHIBIT C PB.Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 Herb Klein, attorney representing the Youngs'. We are very concerned about the procedural posture of this. This is like a shell game with numbers. They asked for 493 and now they are asking for this. They are negotiation and playing with the system and keep coming back. You are supposed to look at this application on its merits. If she doesn't want to build what you approve then she can build what the code allows. She is asking you for a formal action on a short notice and there is not staff memo and no analysis. As we have said before there is no basis in the code for this additional Irant of FAR. They Mayor recognized this at the council meeting on June 8` and he said it would be arbitrary to grant additional FAR without properly adopted standards. When the applicant received council's approval to reconsider it didn't interpret to me that they were in favor of what she was proposing. In fact the Mayor reiterated his comments that he would not support more FAR in the absence of adopted standards and he told the applicant that reconsideration would open the entire request to city review not just this one issue. They could decide to grant fewer benefits. The notion that you should be weighing this request as though the lot was a lot of record is fiction. It is not a lot of record. It is a lot to be created as part of the historic lot split. It can only be approved with the codes governing historic lot splits. This is nothing more than arbitrary rationalization for an illegal act. On June 18t' the task force report came out and by a vote of 7against and 3 for the task force did not support the Modern Chalet as a category worth protection. This calls into the question the value to the community of the designation of this property. The applicant has received generous benefits from Council but the applicant desires more. We ask that you reject further grants of benefits. Jake Vickery — Jake said his concern is how the calculations occurred. Part of his job is to verify the FAR. It is difficult to do because we don't have a full set of drawings for the structure. The applicant indicates that the lot size is 3985 but when calculations were done it actually is 3937square feet. We need confirmation of the correct square footage. I don't see how council can make decisions based on a comparison of models that are undocumented. John Young said HPC warned city council to error on the side of caution that the negotiating benefits could overload the site. I feel this did occur the first time around and this is the second time. I do support the designation of 219 S. Third, however; I am opposed to the lot split and would ask that you 12 EXHIBIT C P&Z AND HPC MEETING MINUTES aaarn[. JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24 2009 reconsider a five to eight foot front yard setback as a compromise to the 16 %2 foot setback that was granted the second time around. The developer's request seems to be trying to work the system in order to get a home that is too large on lot 2 and is not in keeping with the preservation of the community goals. There is a lot of neighborhood opposition to this. The front yard setback, additional FAR and the proposed height for lot 2 is what has my neighbors and my family so much in arms. Thank you for a more favorable decision this time around. Junee Kirk said if we have Modern Chalet as a style the addition destroys the integrity of the building and the lot split with the two additions and box like structure destroy the integrity as well. What would be far better would be to look at the shape of the roof and what is next to it so you can get some sort of harmonious height and repetition of roof lines and actually two little cottages in the lot split. Bill Wiener 701 Gibson — I do feel this building is historic. What is historic in Aspen is what had bearing on the development of our history. It is the economics of the time and the zoning laws of the time and social part. It is reflected in our built environment. This style of taken and adapted to our economy at that time and our climate. The vote in the committee was a straw vote and it means nothing. The building must be preserved but by putting an addition onto it we are destroying the very reason we are doing it. You could build a new building and link it to the old building and connect it with a glass connector and protect the integrity. This building sits on an alley and sits on another street which is a corner and on the third side there is a trail. We should be deciding what we can do to keep the house as it was. Dan McCarty - 333 W. Hopkins I feel council has bent over backward to make this work for Mrs. Foster and she keeps coming back. They gave her 90% of what she wanted and it wasn't enough. I don't see any reason for a reconsider and to grant any other bonuses. Cheryl Goldenberg, 430 W. Hopkins — I walk the Midland trail a lot. It is right in town etc. Now in the last few years there are huge houses all around. Shadow Mountain should be protected. Chairperson, Michael Hoffman closed the public hearing. 13 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 Commissioner comments: John Worcester said council wants a recommendation from this board and when it comes back to city council everything is on the table. The only thing before you is Mrs. Foster's request to go back to council with the 291 square foot bonus and whether the HPC thinks that is a good idea or not. Michael said his feeling is that the HPC has been uncomfortable with this process and this is really the first negotiation that we have had someone on the other side of the table that wants to negotiate with us. My recollection is that we are uncomfortable with the idea of going above and beyond what we traditional had authority to do. Brian pointed out that we still don't have any more guidelines than what we had before. The fact that council heard it and it was brought back to the HPC doesn't make me feel any more comfortable about making a decision. Sarah said the negotiations that we made were permitted by our code. Amy said the incentives that you have granted are those that have always been in your purview. City Council was asked to look at the negotiation and the attorney's office provided them a position that they had full authority to be acting in that form. John Worcester said there are two new members on council that did not hear the arguments pro or con for the benefits that you are discussing. The issue before you tonight is a question from city council, they are asking for an advisory opinion from you in the context of negotiation an ordinance #48 property whether or not all the benefits that you have described and discussed plus 291 square feet of additional FAR whether that is worth giving to the applicant in return for her designating this property historic. That is the issue before you. Sarah said she doesn't feel we need to re -visit the rest of the HPC recommendations. Michael said he is uncomfortable with this process because it is undefined. Are we willing to approve 291 square feet in addition to what we already approved. I am willing to approve the 291 square feet but I am not willing 14 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 to reopen the entire discussion. I am asked this specific question and I can answer in the affirmative. Sarah said there are three 3,600 lots sizes in this adjacent area. Brian said he is uncomfortable voting on this particular issue knowing that if I give an affirmative vote and go with the recommendation to council yet they still have all the other things on the table that they can consider on top of the affirmative vote for this particular bonus. My previous vote was that there is merit preserving this property but I don't feel comfortable with all the incentives. I don't feel comfortable forwarding this one bonus that the applicant is asking for without considering all the incentives and bonuses. I don't feel good about the entire basked that is being asked for. At this point I do not feel I have the ability to dissect each one. It puts me in an awkward situation. What makes a difference are the numbers that have been presented and what Jake Vickery presented. Amy said the difference in calculations is that the architect calculated a lesser amount of area that is over a 30% slope so that accounts for the difference. As a solution what might be a suggestion in the motion is that you support a bonus of no more than 291 square feet with final verification of the calculation. Brian said if we are on par with these numbers I feel that designation of this property which does have some merit will actually have less impact on this area based on the fact that we have discretion over the design that happens on the secondary lot. Amy reminded HPC the ordinance #48 which allows owners to approach the boards with the incentives that they feel are necessary from their personal perspective to persuade as voluntary designation. There really are no parameters on that. The applicant is simply telling you what they feel are the necessary things. Brian said it is not a matter if it is applicable to the code or not. Sarah said we had a similar situation with Riverside Dr. which is R-15. What size lot did we end up with? Amy said she believes it is in the range 15 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 of 4,000 square feet. Sarah said the incentives were the FAR bonus and the lot split and setback variances. We did not do the setback variances until we saw the house that was going onto that lot. Michael said the owner still has to come through our design process and if we say no I don't know what she will do. Jay said he feels an amazing amount of comfort and I look at ordinance 448 in a different way. It seems to be a pretty clean slate. The goal of this is to stimulate the public to come and negotiate with HPC and council. Mrs. Foster has been quite accommodating to the HPC. You can argue that the addition takes away from the historic house but I can argue that the addition can come off and it would still be exactly how it is right now. Sarah said HPC is in favor of historically designating this property. That is why we are here tonight discussing this. We are in favor of the lot split, variance from the alley and in favor of the 500 square foot bonus. Tonight we are discussing the 291 square feet. I did bring up what the by code FAR of the newly created lot. That brings some objectivity to this number. I do agree with Brian that things have to be looked at in totality. When city council reviews everything it should be looked at as architecture etc. I would be willing to vote for the 291 square feet tonight. MOTION.- Jay made the motion that HPC recommends the 291 square foot bonus for Lot 2 and confirming the floor area available on the lot as required by the city code and verified by a registered surveyor. Motion second by Michael. Brian asked if there should be language that the application should be looked at in totality? Jay pointed out that council will look at the entire package and they have two new members. Kathy read the motion: Jay made the motion that HPC recommends the approve of 291 square feet for Lot 2 and confirming the floor area verification from a registered surveyor not to exceed what would be allowed for Lot2 as a lot of record. Michael drafted the amended motion requested by Jay. 16 EXHIBIT C P&Z AND HPC MEETING MINUTES EXHIBIT C JOINT MEETING MINUTES OF THE ASPEN HISTORIC PRESERVATION COMMISSION AND PLANNING & ZONING COMMISSION - JUNE 24, 2009 Jay made the motion that HPC recommends that City Council approve a package of incentives for this application which permitsfloor area not to exceed the lessor of (a) the floor area which would be permitted under the city code if Lot 2 were a lot of record or (b) 291 square feet. The floor area to be verifed from a registered surveyor. Motion second by Michael. All in favor, motion carried. Roll call vote: Brian, yes; Sarah, yes; Jay, yes; Michael, yes. Motion carried 4-0. MOTION: Jay moved to adjourn; second by Sarah. All in favor, motion carried. Meeting adjourned at 9:00 p.m. Kathleen J. Strickland, Chief Deputy Clerk 17 EXHIBIT P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and Zoning/HPC Commission July 08 2009 Comments Conflicts of Interest Wheeler Opera House -320 E Hyman 2 2 EXHIBIT C P&Z AND HPC MEETING MINUTE EXHIBIT C Special Meetine Aspen Plannine and Zoning/HPC Commission July 08, 2009 Michael Hoffman opened the Special P&Z and HPC Meeting in the Council Chambers at 5:20pm. Commissioners Sarah Broughton, Jay Maytin, Ann Mullins, Michael Hoffman, Cliff Weiss, Bert Myrin, Stan Gibbs, Jim DeFrancia, and LJ Erspamer were present. Staff in attendance were Jim True, Special Counsel, Sara Adams, Amy Guthrie, Jennifer Phelan, Chris Bendon, Community Development; Jackie Lothian, Deputy City Clerk. COMMENTS Jim True said that a quorum was needed by both commissions, so Sarah Broughton was needed for the HPC quorum but could not stay or participate in the meeting. CONFLICT OF INTEREST Jim True sent out an email on an open house on an unrelated project regarding ex- parte communications and the commissioners should disclose conflicts at the meeting. Michael Hoffman stated that he legally represented Kathy Markle on another matter not pertaining to the Wheeler. Sarah Broughton was conflicted on the Wheeler Opera House because she was one of the local architects on the Wheeler project. CONTINUED PUBLIC HEARING: 320 E HYMAN — WHEELER OPERA HOUSE — HPC Maior Development Review and P&Z Special Review for Parking Michael Hoffman opened the public hearing on the Wheeler Opera House. Sara Adams stated this was the public hearing for Conceptual Commercial Design Standards for the Wheeler as a joint meeting with HPC and P&Z continued from June 24`h. Sara Adams said staff recommended Conceptual Commercial Design Standards approval. Adams said the public amenity was the rooftop access. The architects have pulled the addition forward 6 feet so there was a 4 foot setback for the building from the property line for the addition and eliminates the curved element but still exposes the comer of the historic Wheeler under the staff memo public amenity and Section 26.757.030.F.5 which states "public amenity space may not be 4 feet above grade" however Section 26.575.030C.4 —"Commercial Design Review may accept any method of providing Public Amenity not otherwise described herein if the Commission finds that such method equals or exceeds the value, which may be non -monetary value, of otherwise required cash -in -lieu payment." Adams said this was providing public access to the rooftop with a EXHIBIT 2 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and Zonine/HPC Commission July 08 2009 capacity of about 90 people for patrons of the Wheeler and does meet the intent of that public amenity space. Adams said that a condition in the Resolution that during final review the applicant will show an anticipated schedule for the 41i floor, they just want have a way to quantify that 4`h floor artist in residence that it will be available to non -profits and won't be booked to an artist or performer the entire year, which would not allow the ability for the public to rent that unit. Michael Hoffman asked what was different about the 4" floor. Sara Adams replied there was a stair enclosure to allow the public egress. Sara Adams said that there wasn't really much change to the building height, mass and scale. Staff found the guidelines 6.27 and 6.28 are met with the proposed mass, scale and height of the addition. At the last meeting some P&Z members also brought up some of the uses being brought into the existing Wheeler and into the addition; the overall mass of the addition has not been changed. Staff recommended for final review that the applicant study the fenestration. Sara Adams said the big issue was the entrance with guideline 6.34 for the historic Wheeler as the focal point of this parcel with an addition of an ancillary use to the Historic Wheeler. Sara Adams said the there was the historic grand staircase in the original Wheeler with the IBC and the new entrance was appropriate. Overall staff finds that the project meets the applicable review criteria specifically addressed with all of the exhibits in the packet. Adams noted there was a joint resolution included in the packet with the condition of approval regarding the public amenity space requesting the proposed occupancy used for the rooftop unit. Michael Hoffman asked how the occupancy would work in real life. Adams responded that staff wanted to make sure that the unit was made available to non- profits and the public to rent for a reception or performers with information on how that would work. Jay Maytin said there were clear guidelines about the entrance but not the interior; how did you decide to move the entrance rather than the staircase. Adams replied that it is a guideline with the philosophy of maintaining a Historic entrance with the historic staircase. Maytin asked with the removal of the existing elevator will that be a passage way to the new addition. Adams replied that the opening would be maintained as a passage way. Gram Slaton stated that the original door was used by Aspen film. EXHIBIT C 'y P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and Zonine/HPC Commission .lulu 08, 2009 Li Erspamer said that all of the egress for the new theatre was on the left side; should there be an egress on the right side for fire code. Adams replied that the architects have been meeting with the building department and the fire marshall and have scheduled a DRC for July 22nd. Erspamer said that pedestrian amenity has him confused because it says that it has to be on the streetscape but that HPC and P&Z can decide where it goes. Adams responded that HPC and P&Z could actually waive the public amenity requirement because it was a development on a landmark and they were proposed since public amenity was so important that the rooftop space meets the section of the code the rooftop deck either equals or exceeds the value, which could be non -monetary value, of the public amenity. Cliff Weiss asked for the diagram of the rooftop and asked which part was public access. Michael Farewell stated the cross hatched area was public access. Weiss asked if the concerns for blank walls were addressed. Adams answered that it really hasn't changed; the curved piece on the corner was eliminated and moved the fagade forward so the setback was now 4 feet from the property line. Ann Mullins asked why the building was moved 6 feet forward. Michael Farewell responded that there was discussion about the guideline of holding the fagade on the street or should it be met or whether a setback should be maintained of 10 feet by 60 feet would be used and the while some setback was called for to free the corner it would show the way the stone turns into brick and that 10 feet would impact the interior more than what was needed; so the setback was modest and met the interior needs. Stan Gibbs asked the square footage of the roof gardens area. Michael Farewell replied that it was about 30 by 50; the rooftop space would be larger than the reception space. Bert Myrin said that he packet mentions a parking requirement that was recommended that it be waived and there was no mention in the resolution of parking. Sara Adams responded that parking was under HPC's purview. Jay Maytin asked about the cash in lieu being public cash being paid back to the public. Michael Mills, partner in charge of preservation, introduced Michael Farewell partner in design. Michael Mills said that his role was to protect the historic character of the team though research that they have developed a deep appreciation for the history and materials of the Wheeler. Mills said the preservation planning EXHIBIT C 4 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and Zonin¢/HPC Commissiou July 08 2009 for the Wheeler based on the Aspen Historic District Guidelines, which are in turn based upon the Secretary of Interior Standards for the rehabilitation of historic buildings. Mills said the preservation for the Wheeler were for two levels of treatment conditioned by the integrity of the historic fabric and these were defined by the standards as preservation and rehabilitation; restoration and reconstruction really don't apply to this project. Mills said the preservation area includes the storefronts, the stone, cornices, the windows, the doors and all of the trim of the Wheeler. The preservation zones on the interior are the main stairwell and the auditorium and the other spaces in the building were support and could be rehabilitated for other spaces while preserving the significant features like the bank vaults. The interior has some functional areas that need to be addressed including inadequate lobby space, the ticket area with poor circulation, fire and egress issues and heating and air conditioning system that needs to be updated to current environmental standards. This project offers the opportunity to make those needed improvements. The design goal was not to imitate but create a quietly confident work of architecture that fills the program and be useful and a source of pride to the citizens of Aspen. The public reviews have helped refine the project to conform to the intent and provisions of the ordinances and design standards; they look forward continuing this project. Michael Farewell utilized power point to show the mass of the historic building and the infill adjacent to it. Farewell said the 4 foot setback provides a larger queuing space and respectful attitude towards the corner. There were 2 floors below grade (about 30 feet) and that is taken up by the 235 seat theatre and balcony and above it with 3 main floors and the apartment with multi -use space on the top. Farewell said the lower level did not have the 4 foot setback but came out to the property line. Farewell said the plan shows the current Wheeler offices and the restaurant has storage down there and the new plan will have storage and new mechanical space needs with about 1100 square feet left of usable space. Farewell explained every floor including the employee apartment so there would be an employee on site. The roof terrace space was reconfigured to be a publically accessible multi -use space and a 2 bedroom 2 bath apartment with a kitchen and living room which can be easily setup for receptions. Farewell said there was more work to be done on the elevations. Farewell said the addition had its own character and transparency and exhibits the quality and life of the theatre, makes it visible when you are outside of the building and also opens up to the landscape when you are inside. John Rowland said they will be doing another series of open houses and community outreach to try to address some of the community concerns and make EXHIBIT C ` P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meetine Aspen Plannine and Zonine/HPC Commission July 08, 2009 sure that everyone is informed and to have the same information when this goes to the ballot. Rowland said this was a great opportunity for citizens to co -mingle with community and some groups that want to use this space. Anne Mullins asked what the connections between the 3rd and 4rh floors with the Wheeler and the addition. Michael Mills replied the 3rd floor was a lobby space maintaining the stairwell. Ann Mullins said when you come up the stairs where can you actually get to on that 3rd level. Michael Mills responded if you bought your ticket or have your ticket one option is to take the elevators off to the left to the uppermost level; the second option was to take the staircase and at the current lobby level ascend up the next set of stairs to the orchestra level or the third option was to ascend up the historic stairs. Mullins asked what the proposed access to the upper level was. Mills answered there would be a potential to make the connection but can't make an interior connection without raising the roof of the building which wasn't feasible so they were maintaining that relationship. Bert Myrin said there were concerns about the view from the north and the Hotel Jerome viewplane. Michael Mills showed pictures taken from the Hotel Jerome with angles that they were clearly in that zone and the existing Wheeler was above the defined viewplane by about 10 feet and the new addition is below that viewplane. Li Erspamer asked where the viewplane is at the Hotel Jerome. Sara Adams said the origination point for the viewplane that we are talking about is in front of the J Bar with a determination of eyelevel in the land use code from the survey. John Rowland replied the height was 5 foot 6 inches and basically the width of the Hotel Jerome. Bert Myrin asked about the historic view of the Wheeler from Red Mountain. Michael Mills responded that the Wheeler would still be seen from all sides and was so distinctive from any point. Jay Maytin voiced concern with the cross section which shows the balcony protruding past the fapade of the Wheeler. Sara Adams replied that the balcony was not dealt with until final but at this time the concerns were volume, mass, scale, height and proportions during conceptual. Adams said the balcony will be discussed during final reviews. Maytin asked if granting this conceptual would grant this drawing. Adams replied it would not grant the details, the materials, and fenestration but rather what is the size of the box. EXHIBIT C 6 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and ZoninpJHPC Commission July 08, 2009 Cliff Weiss asked how important was the tenant revenue of the existing space. Gram Slaton replied the revenue is going to be key to make this building work and he is interested in getting a tenant that was a media outlet for the Wheeler in the subgrade space. Weiss said there was a lot of space dedicated to the entrance lobby area. Mills said the current lobby cannot accommodate the occupancy of the theatre and that was a challenge from a life safety point of view, from an operational point of view and for patrons that want to socialize at intermissions. Mills said that the lobby had to be safe and accessible. Mills said the theatres would have staggering time starts and the new lobby picks up the P floor intermission patrons. Jay Maytin asked what 90 people get to use the roof; the Wheeler hold 480 some people; will it truly be a public accessible place or orchestra seats first and balcony seats second. Maytin voiced concern for this rooftop becoming a VIP area and that the public has access to it; will there be a plan for that. Gram Slaton replied that the cut roof from the balcony was just presented to him about 90 minutes ago. Maytin said that he was talking about the terrace. Slaton said that they were looking at this as a room not connected to any particular performance and looking at this as an amenity to be used for a variety of intended uses. Ron Erickson, chairman of Wheeler board, stated the board's mission statement was to promote local non-profit arts groups and the use of the Wheeler. Erickson said they subsidize performances in the Wheeler for local arts groups and all of the elements of the building would go as a public amenity. Erickson said their goal was to make this a transparent process. Erickson said the rental income funds the non-profit grants in this town. Kathy Markel, member of the Wheeler board, said that many of the local art groups have asked her to represent their enthusiasm for the type of space that will allow a smaller venue to fill up with a flexible venue allowing different types and styles of performance. Markel said that most of the people that she spoke to would like every square foot of the property maximized as a public amenity; the building itself was a public amenity. Pam Cunningham, board member, stated that there was exceptional leadership in this process that stems from Gram; he was instrumental in setting up the architects and processes with the city. Cunningham complemented the architects for listening to the boards. EXHIBIT C 7 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and Zonine/HPC Commission July 08 2009 Michael Hoffman read the letter from Lisa Markalunas. Sara Adams included in the packet the letter from Lisa Markalunas, Bill Wiener, Junee Kirk, Jasmine Tygre, Susan O'Neal plus 2 more letters from Junee Kirk. Public Comments: Lisa Markalunas, public, voiced concerns for parking, the mass and scale of the building. Markalunas said that the applicant needs to address the parking needs because of adding more performances and patrons to the Wheeler. Markalunas was concerned about the glass on the fagade of the new building and the nature of the building. Markalunas said that the Wheeler was one of Aspen's crown jewels and if it is destroyed it in the process of trying to make it something that it really can't be a performing arts center that might be appropriate somewhere else. Page Price, artistic director of Theatre Aspen, thanked the Wheeler for including them in discussions and offered support in the direction that they were going. Junee Kirk, public, wanted to say that looking at the viewplane from the Jerome there was not much to see but if you look at the poster card that everybody identifies Aspen with from Mill Street and Main with the historic shape of the building. Kirk said that they have fought long and hard to protect theses iconic buildings and open space and that open space was bought to protect the Wheeler. Kirk said that we need to protect our historic structures and there were other places around town that could be used for performances. Jeffrey George, managing director of Theatre Aspen, gave a vote of confidence to this architectural firm in particular to this historic building. Michael Hoffman closed the public hearing. Michael Hoffman asked if the trade of public amenity space from the ground level to the rooftop space and are the balance of the commercial design standards were satisfied by the application. Bert Myrin said that he agreed with the public amenity space being the whole building and saw no need for public amenity space outside the building. Myrin suggested shrinking the height of the addition but that was another issue. Cliff Weiss said he had a problem with the rooftop unit because some artist would have that rooftop as their own space and it would be closed to the public; he wanted it as a public amenity space at all times. Weiss said the height was pushed EXHIBIT C 8 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meeting Aspen Planning and ZoningWC Commission July 08 2009 up for this fourth story apartment and that was a concern of his. Weiss said he would like to see the atrium area as a grand lobby but wanted to see this at final. Hoffman said that these were concerns for final. Adams said that the request was for both commissions to be weighing in on the height, mass and scale. Adams said this was an application against the commercial design standards which a review similar to HPC conceptual review in looking at mass, scale, proportion, context and how it relates to the historic district. Adams said that in conceptual the concern was what is this structure going to look like in Exhibit C. Jim DeFrancia said that he agreed with the statement that the whole building was an amenity and would like to see the setback on the addition. Ann Mullins said the rooftop doesn't meet the intent of public amenity space since it is only for Wheeler patrons and that would only accommodate 90 people. Mullins said that she would have retained the 10 foot setback; the 4 foot setback is creating a non space and you might as well go to the lot line. Mullins said that this needed open space to the front or side of the building both to reduce the mass and create a public amenity. U Erspamer asked if a public amenity was supposed to be available to the public 24n. Hoffman replied no. DeFrancia said that a public amenity was a space that was available to the public and inheritably has hours, character of operation and whether or not it is free. Hoffman agreed that the whole building was a public amenity. Jim True said there was the ability to waive that public amenity or reduce the amount that is set forth in that section. Hoffman also agreed with Ann with the spirit of public amenity. Weiss said that he was hesitant to eliminate the public amenity space requirement. Maytin said that it was important that the public amenity language remain in the resolution. Adams said to summarize the public amenity options could be (1) the 25% requirement; (2) a reduction of the requirement; (3) waving the requirement or (4) the rooftop access is sufficient to meet the public amenity intent. EXHIBIT C q P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meetine Aspen Planning and Zonin&HPC Commission July 08, 2009 Stan Gibbs said that he agreed with Bert that the whole building was a public amenity. Weiss said that photovoltaic was a problem. MOTION: Jim DeFrancia moved for the adoption of the language which is Section I public amenity space; seconded by Bert Myrin. Discussion: Chris Bendon provided background on the City's approach to this pedestrian amenity; it was called open space as a way to recognize the importance both open space with visual access to the mountain and urban elements that make downtown fun to be in and lots of different ways to express that. Bendon said in the old code 25% of the parcel was the rule and the City found out that some spaces worked really well like Paradise Bakery and Zele but other places were not good so the City went away from a quantitative thing. The Cantina outside dining is pedestrian amenity space that works well, which contributes to the life and vitality of town. Bendon says the code specifically grants the authority to come up and understand someone's contribution to the downtown. Bendon said the importance of the viewplane was from the Wheeler parcel and there maybe a few times a year for someone to go up to that 4`" floor deck and enjoy that space and maybe with a ticket to an event. Ann Mullins said that it was a great amenity to the project to have a rooftop terrace but her objection was that it did not add any vitality to the street. Jay Maytin said that 10 feet was not enough to create vitality but would not support bringing the new portion to the lot line because the 4 foot setback does create a distinction to the historic resource. Jim True said that there needs to be a resolution to approve the resolution then you could amend the motion. MOTION: Jim DeFrancia moved to amend the motion for approve the P&Z and HPC Resolution as presented by staff; Bert Myrin seconded. Discussion: LJ Erspamer asked if they were voting as a group. Jim True replied they were voting as a group and the majority prevails. EXHIBIT 10 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meetine Aspen Planning and ZoninzMPC Commission July 08, 2009 Michael Hoffman noted that staff directed the commissions to talk about the height, the relocated uses, the bands on the front fagade and the relocated entrance. Sara Adams said that the bands on the front fagade were a heads up to the design team for final review so the bands were off of this discussion. Adams said it would be appropriate to discuss the basement of the addition and the massing of the addition how it relates to that size of the building. Bert Myrin said that Section 2, Design Guidelines, 6.25 mentions perceived scale of the building and vertical fenestration would bring the building down. Myrin was not convinced that the top 2 floors could shrink enough for the Wheeler to stand out. Jim DeFrancia asked Bert if he thought the addition was too high. Myrin responded that it doesn't fit into the scale of the area and was too high. Myrin said that Section 3 was more of a fact and was concerned about the height and the Diva Apartment may have some opposition in an election. Ann Mullins said the perception of the mass could be changed dramatically depending upon the type of fenestration and the detail; the height seems to work well because it is lower than the Wheeler and does not overpower the Wheeler. Mullins said there should be a storefront street presence that would also bring in that entry and was unfortunate that we can't resolve something with that entry because it becomes a secondary part of the development. Mullins said the addition becomes too much of a departure from the Wheeler and looks too massive, too uniform and too bulky and detracts from the original. LJ Erspamer said that he would like to see more articulation. Erspamer said that there was a minimum of 2 feet between buildings but what was the maximum and how do you articulate the modulation between the buildings but yet is there some way to make it softer and more harmonious with the neighboring buildings. Erspamer said he was concerned about the 4`h floor. Jay Maytin agreed with the LJ on the 4th floor that was already too high. Maytin said that he can't see how the 4`s floor fits in with the rest of the block with the Motherlode and Crystal Palace buildings. Michael Hoffman said he was trying to put the pieces together. Hoffman said the 3`d bullet point was additional height in the zone district may be added for one or more of the following reasons and one of the reasons was the primary function of the building was civic. EXHIBIT C P&Z AND HPC MEETING MINUTH WAMMIZH Special Meetine Aspen Planning and Zonine/HPC Commission July 08, 2009 Sara Adams said they were talking about the placement of an addition, the size, how it fits into the guidelines, how it fits into the historic district, how it contributes to the urban fabric and then the applicant will go to Planning & Zoning and Council to determine the specific dimensional requirements for floor area and also for height. Michael Hoffinan said that he did not have a problem with the Diva Apartment. LJ Erspamer asked how many square feet was the 4`h floor. Sara Adams said on the 4`h floor the questions were is that mass appropriate and does it fit into the context adjacent to the Wheeler and sandwiched between the Motherlode and the Wheeler. Cliff Weiss said they were asking for a height variance and it was a judgment decision. Michael Farewell said the roof access will require stairs and a bathroom. Bert Myrin asked where the solar panels were going. Michael Farewell said that they were going on the apartment roof. Myrin said that he could support this if the top 2 floors weren't there as far as mass and scale. Cliff Weiss asked if they were prepared to have a conceptual vote because a lot of the details were in a vague description in the resolution and in the PUD would get to the specifics and they were getting all of the signals. Jim DeFrancia agreed with Cliff said that the PUD application had to go to P&Z and Council for the necessary waivers; he suggested that this review approve the height with a qualification. Sara Adams said that if you approve the drafted resolution then you would be approving the placement of the building, the shape of the building, the setback. Adams said the PUD process would include the height variance and floor area. If the commissions have not resolved the height and mass issues tonight she suggested continuing to August 4`h Amy Guthrie read that the commercial design review shall be binding upon the commission in regards to. the location form of the envelope of the structure addition including its height, scale, mass and proportions no changes will be made by the commission unless agreed to by the applicant. Sara Adams said the height was to be defined in the next step, what the height is through the PUD process. Jim DeFrancia said that there did not seem to be broad support of the height and Section 3 should be amended or come back and have a more extensive discussion. Adams said that if the commissioners say this is too tall and needs to come down. EXHIBIT C 12 P&Z AND HPC MEETING MINUTES EXHIBIT C Special Meetine Aspen Plannina and Zonine/HPC Commission July 08, 2009 Michael Hoffman said that he did not have enough information to make a decision with this joint commission with some structure to evaluate this application. Hoffman said the applicant has supplied information. Stan Gibbs said if the commissions move the sentence from Section 3 and remove the word height and simply puts the reference to height and floor area to Section 3. Gibbs said the qualitative items would be part of the design guidelines section that could be approved but the actual floor area and height would be deferred to a PUD process going through P&Z. Jay Maytin said that he felt it was important for HPC to vote on the height because of the historic resource next door. Michael Hoffman said that he was not happy with the current process. Sara Adams said this was the first joint review for commercial conceptual design review so it was a work in progress. Michael Hoffman asked to reconsider the code and come back with a process that actually works. Jim True said that they were in the process with the joint board. Michael Hoffman said that they could refashion to address the concerns. Jim True said that they might be able to refashion to give everybody a comfort level for this whole process to proceed. Jim DeFrancia and Bert Myrin withdrew the first motions. MOTION: Cliff Weiss moved to continue the Wheeler HPCIP&Z to August 4, 2009 seconded by Jim DeFrancia. All in favor from P&Z and HPC; APPROVED 8-0. Discussion: Weiss said it was not P&Z's intention to cut out HPC but there were flaws and he felt the need to continue. Chris Bendon suggested that the code provides for a modification of review procedures; what might be all the same issues here of PUD, Commercial Design or the major conceptual at HPC. Bendon said all was dealing with the height, mass, setbacks and the form of the structure and three different actions have to take place and 3 different boards to take actions on. Bendon said they could consider because the August 4'h meeting could be noticed as this joint board takes action on the Commercial Design Review and the conceptual PUD to City Council. Jim DeFrancia said that P&Z would review with HPC as a joint board. Bendon replied yes. Bendon said that the criteria are observed and the public is noticed properly. Hoffman asked the P&Z if they were comfortable in the HPC making the joint decision making. Both commissions agreed to this joint review. EXHIBIT C PdZ AND HPC MEETING MINUTEJ3 Special Meeting Aspen Plannine and Zonine/HPC Commission July 08, 2009 P&Z adjourned at 8:15 pm. 0ackie Lothian, Deputy City Clerk EXHIBIT C EXHIBIT C P&Z AND HPC MEETING MINUTH EXHIBIT C Amen Plannine and Zonine/HPC Commissions Aueust 04, 2009 Comments Conflicts of Interest Minutes Wheeler Opera House -320 E Hyman 2 2 2 3 EXHIBIT C P&Z AND HPC MEETING MINUTE EXHIBIT C Aspen Plannine and Zonine/HPC Commissions Aueust 04, 2009 LJ Erspamer called the Joint P&Z and HPC Meeting in the Sister Cities Meeting Room to order at 5:15 pm and asked that the joint meeting go on until 7:45 pm. P&Z Commissioners Cliff Weiss, Jim DeFrancia, Brian Speck, Mike Wampler, Bert Myrin, Stan Gibbs, and LJ Erspamer were present. HPC Commissioners Sarah Broughton, Jay Maytin, Brian McNellis, and Michael Hoffman were present. Commissioners excused were Nora Berko, Ann Mullins and Dina Bloom. Staff in attendance were Jim True, Special Counsel, Sara Adams, Jennifer Phelan, Chris Bendon, Community Development; Jackie Lothian, Deputy City Clerk. COMMENTS Chris Bendon requested a member from P&Z serve on the Lodge at Aspen Mountain COWOP; it was similar to the Lift One Neighborhood COWOP that Cliff sat on. LJ Erspamer asked Jim True to explain the process of this meeting. Jim True said that a quorum was needed by both commissions, so Sarah Broughton was needed for the HPC quorum but could not stay or participate in the meeting. True said the process was for a joint P&Z and HPC Commercial Design Standards Review and the vote was a majority of the total. True said there was a meeting between staff and LJ, Stan and Michael and came up with a procedure and each of the additional issues would act as separate boards and be voted upon separately; P&Z Conceptual PUD, Special Review for Parking and HPC Conceptual Review. The process was that Stan would chair the P&Z and Michael Hoffman would chair the HPC and LJ would chair the joint review and discussions. Cliff Weiss proposed meeting on the AACP on the 2 extra meetings in September and October; no objections from the City P&Z. CONFLICT OF INTEREST Sarah Broughton was conflicted on the Wheeler Opera House because she was one of the local architects on the Wheeler project. MOTION: Mike Wampler moved to approve the joint HPC P&Z meeting minutes from June 24, 2009; LJ Erspamer corrected page 10 to LJ excused himself not recused; seconded by Brian Speck. All in favor, motion carried. MOTION: Brian Speck moved to approve the joint HPC P&Z meeting minutes from July 8, 2009; seconded by Jay Maytin. All in favor, motion Carried. EXHIBIT C 2 P8Z AND HPC MEETING MINUTES EXHIBIT C Aspen Plannine and Zoninz4WC Commissions Aueust 04, 2009 MOTION: Brain Speck moved to approve the P&Z minutes from July 21, 2009 seconded by LJErspamer. All in favor motion carried. CONTINUED PUBLIC HEARING: 320 E HYMAN — WHEELER OPERA HOUSE — HPC Maior Develoament Review and P&Z Saeeial Review for Parking LJ Erspamer opened the continued hearing on 320 E Hyman. Sara Adams provided Jim True with the public notice for the P&Z Conceptual PUD Review. Adams said that pages 1 & 2 of the packet were a synopsis of what Jim True just presented. Sara Adams provided a brief overview of the changes. Adams said the applicant spent a lot of time restudying the rooftop element; there were 5 iterations proposed; the July 8`h and 4 different iterations in the packet (Exhibit B). Staff still felt that rooftop access was crucial element to this project it was an extremely important opportunity for the public and supports the Civic Master Plan and the AACP. Staff felt a unit on the fourth floor was very important and that it should be a year round rooftop space rather than just the summer. On page 4 of the packet there was a chart of the 5 iterations for a comparison. The Civic Master Plan recommends that the program for the Wheeler expansion accommodate as many community arts groups as possible. On page 8 of the packet the chart outlines the differences in floor area calculations for each of the iterations and there wasn't much of a floor area increase and especially in terms of the community benefit would receive from having rooftop access and having a unit that could be rented out and use on the fourth floor. Adams said that HPC was asked to grant special review for parking, which will establish the parking requirements on the site. Staff is recommending a Transportation Plan be submitted with the final PUD application. Adams stated that P&Z will be reviewing Growth Management for housing after conceptual PUD is granted by City Council. Adams said there were no new letters from the public but reiterated the previous public hearing letters from Junee Kirk, Susan O'Neal, and Lisa Markalunas. Stan Gibbs asked about alternate 44 with regards to rooftop access. Sara Adams replied that there was no public access to the greenroof with the exception for EXHIBIT C 3 P&Z AND HPC MEETING MINUTES EXHIBIT C Aspen Planning and ZoninzWC Commissions August 04 2009 maintenance access, which would be a stairway that would still require a height variance. Bert Myrin asked about the employee generation looked at later. Sara Adams replied yes. Myrin asked if there were 10 employees generated would they just be included in the box or on top of the box. Jay Maytin asked if the interior plans that were being looked at were not approved. Sara Adams replied that it was the general intent but it was not set in stone until final when you have the detailed plan. LJ Erspamer asked about the trip generation rates must be calculated pursuant to the standards to the standard Institute of Traffic Engineers Trip Generation rates and submitted as part of the final PUD application. Erspamer said it doesn't say what you would do once you get the results and asked why wasn't there a conclusion to this. Adams responded this was something that came out of the DRC Meeting and will play into the detailed transportation plan in measuring the type of impacts that the addition will have and how that will be mitigated, which is a final review discussion. Erspamer said that on page 23 at the top he did not understand "the Transportation Plan that studies pedestrian connections". Adams said there were concerns raised from the Engineering Department about the connection of the pedestrian mall into the Hyman and Mill intersection and they were talking about making that intersection better in case of 2 Wheeler events at the same time to not impede traffic flow and the Galena Street Shuttle. Erspamer said on page 77 of the staff memo you talk about 6.28 set back the upper floor to vary the building fagade profile and roof forms and asked for the guidelines and asked why 6.29 was not included. Gram Slaton, applicant, stated that his job was to make one last best case for the public amenity that and would serve with the artist apartment. Slaton said that they have made this a larger and greater use space for the community; this wasn't a "Diva" Apartment. Slaton said that getting an artist to perform here is stated in their contract that was important is where we were going to put up the artists. Slaton used power point to show some of the artists' contracts and their requirements for their stay in Aspen; this is what the artist expects and a big part of talent to come to any location. Slaton spoke of other entities like the MAA, Aspen Film and Theatre Aspen that place performers in the board members house. Slaton said that the Wheeler performers do not want to stay at a board members house they expect to stay in some kind of hotel situation, which Theatre Aspen can't EXHIBIT C 4 P&Z AND HPC MEETING MINUTES EXHIBIT C Aspen Plannin¢ and Zonine/HPC Commissions August 04, 2009 afford. Slaton said that they were not looking at this unit as long term housing for anyone but rather 2 to 3 nights at the most in most situations and that was what was needed at the Wheeler and a lot of the other arts groups needed. Slaton said the Wheeler does about 35-40 days of live activity a year where they would need to have artist housing because we require the artist to come to town for an extra day just so we can be sure that the artists actually get to town particularly in the winter that means that were are taking about 65-70 days of use of that space as artist accommodations. Slaton said that they would make that space available to all of the other arts groups during the winter and a very conservative profile would be about 30 days annually. Slaton said that in the summer the other arts groups in town would be 30-40 days so if you put that all together there would be about 160 to 180 of the year that space could be used to house artists so there was another half a year not used. Slaton said that the rest of the roof could be used for the public for audiences during performances and after the show even if there was an artist in the unit. Slaton said the audience was not allowed in until about a half hour before the performance and usually the audience was gone a half hour after the performance is concluded and during all of that time the artist is required to be backstage in the dressing room so there was no way the two uses were going to overlap; that means the audiences could have that access without disturbing the artist. Slaton said that half of the year that they were not using it for artist housing it could be used by the public for any number of uses. Slaton said the question of why don't we just buy it someplace else came up at previous meetings and they looked at what was the cost of building verses the cost of buying it retail from someone. Slaton said the cost to build it would be a worst case at $650,000.00; the cost to buy it from another location would be a lot more than that; building the apartment was a good investment with the payback at 7 or 8 years after completion. Slaton said that this was an amenity for the arts groups being able to use it and the public being able to access. Slaton said the payback comes in better productions from our arts community and better use of available funds by those arts groups. Jim DeFrancia said those contracts refer to hotels and an artist is not just interested in those 2 bedrooms but being able to call room service or get a car and interested in a concierge; there were all these amenities and services that go along with hotel lodging that will not be available here. DeFrancia question the ability of this facility to accommodate some of those contractual needs. DeFrancia asked if the applicant disagreed with that. Slaton replied that often they will use an independent concierge service for that purpose who will be that hands on person. DeFrancia asked if any performers have ever refused to come here because there was not an apartment in the Wheeler. Slaton responded that a lot of those artists EXHIBIT C S P8Z AND HPC MEETING MINUTES EXHIBIT C Aspen Planning and ZoninzWC Commissions August 04 2009 came in under some other presenter and not under the Wheeler; he said that they have passed on artists during the high times of the year such as Christmas to New Years week and Presidents weekend and Fourth of July. DeFrancia asked if they have done an economic analysis that shows how much or you project to spend on alternative lodging because this is potential business for our local hotels. Slaton replied that they have done some of that artist requirement but if that suite were available then the problem would be solved. Jay Maytin asked the proposed square foot of the apartment. Slaton responded about 1297. Maytin asked how much the Wheeler has spent on places for artists to stay in the hotels. Slaton replied that he did not have those figures. Maytin said that he would find that figure to be extremely important because if that figure came out to be $35,000.00 to $40,000.00 if it would work in your favor towards the unit. Slaton replied that they spent $15,000.00 to $20,000.00 on hotel rooms just during Christmas week. Maytin said that he was not asking about the entourage but just for the artist because this was public money and how long would it take to pay back. LJ $rspamer asked about the statement on page 7 that on this PUD application Wheeler expansion will attract more visitors to the commercial core while not innovating the area with more parked vehicles; how are we going to do that. Slaton replied that Tim Ware was not concerned that the parking garage could accommodate parking. Brspamer asked if anyone has done a study of parking at night in this town. Sara Adams said that at final there would be a detailed transportation plan and trip generation study. Michael Farewell, architect, asked John Rowland to utilize the massing model to show the different proposals on the 4`h floor addition with apartment, reception area, restrooms and exit from the vestibule to the roof terrace. Farewell said that Alternate # 1 showed a new stair and used power point showing views from various points. Alternate #2 has a dedicated reception room, public space on the 4"' floor with a bar and reception space with 2 means of egress; a couple of bathrooms and a small vestibule opening to a terrace on the southern side. Farewell said the views from around town were minimal in terms of the streetscape. The last option was not to have anything on the 4 h floor and not to have public access with a mostly green roof with some photocells and access with a new stair for maintenance; there would need a variance for the height on the stairwell. Farewell said they think this should be a sandstone building similar to the Wheeler to connect visually; they want a building that has both solidity and transparency. The entrance to the building should be in this new addition with a sence of place and theatre to it and EXHIBIT C P&Z AND HPC MEETING MINUTE EXHIBIT C Aspen Planning and ZoningWC Commissions August 04, 2009 the visibility into the lobby was very important. There will be warmth of light added to the building with some light boxes in the upper windows. Stan Gibbs asked if there was a magic number in terms of green roof area. Farewell said there was an Engineering requirement for filtration to get the right amount of green roof to handle that water. They would like to place some photo cells on that 0 floor to help with the energy use. Li Erspamer asked for an explanation on 6.32 in the commercial core guidelines says when adjacent to a 1 or 2 story historic building, this is not adjacent, that was originally constructed for commercial use a new building within the same block face; he asked what was a block face. Jennifer Phelan replied the block face was center block for all of the buildings around. Erspamer asked if there was a picture of the front; so it was the whole block. DeFrancia said that was one interpretation and another interpretation was the kind of block you are using on the face of the building. Erspamer asked how we apply this language to this application; if it's in the same block that means has to be 28 feet next to it. Phelan said the intent on some of this and the Wheeler was a little bit different animal because of the height that the Wheeler has currently but a lot of the intent was to have modulation in building height so that they are not all at the same height. Adams said that 6.27 in the guidelines a new building or addition should reflect the range in variation in building height of the commercial core. Adams said if you go down 3 bullets it says additional height as permitted in this zone district may be added for one or more of the following reasons; two bullets down from that it says the primary function of the building is civic. Erspamer said that the Motherlode a new building within the same block face should not exceed 28 feet in height within 30 feet. Adams replied the Motherlode was approved before these guidelines were in place and to use these guidelines was to apply contextually to the project in front of you; they were not standards it was a guideline. Erspamer asked if there were any elevations without trees in the way. Farewell said that they could strip out the layer of trees. Brian McNellis said that the streetscape was mostly deciduous trees which were without leaves for a majority part of the year. Maytin said there was a lot of discussion on the view from this addition from above; from the mountain and maybe from the northern hills; do you have any rendering showing what it looks like from the top of Little Nell. Farewell replied that they do not have that particular view. EXHIBIT C P&Z AND HPC MEETING MINUTE EXHIBIT C Aspen Planning and ZoningWC Commissions August 04, 2009 Jim DeFrancia excused himself at 6:30pm. Public Comments: 1. Junee Kirk, public, stated concern for the roof public amenity because nobody ever uses roof public amenity and an example was the roof on the Kandycom Building. Kirk said the views from the computer program can be adjusted and any addition to the Wheeler will obliterate. Kirk suggested story poles to show the impact would be on that addition. Kirk said the glass took a lot of energy and there was a way to do the addition and be sensitive to the environment. Kirk requested no variance for any kind of height because these issues haven't been addressed. 2. Cathy Markle, public, asked if the Wheeler Board would be speaking in conversation with the commission or should the Wheeler Board make their comments during the public comments. Erspamer replied during the public comments. 3. Lisa Markaluna, public, voiced concerns about the mass and scale; this was the most historic building in town and it is as much about historic preservation then it is about the arts groups. Both of those must be kept in balance because the preservation of that building must be kept for the future of this community and to honor the past. Markahmas said that the maintenance of the current entrance and stairwell contributed to the significance of the Wheeler and the parking has been totally glossed over; there was less parking in town at night without paid parking. If there were two performances simultaneously there would be a bigger impact on parking and the business community. Markalunas had concerns for the process and it was a shame that the Wheeler Opera House had to be the testing point for the joint process. 4. Kent Reed, public, said that he was the director of the Hudson Reed Ensamble. Reed said that the Wheeler Opera House used to be more of a community venue for resident performing groups and he understands that has changed over the years. Reed asked for consideration for the people that live here and perform here; there is no rehearsal and precedence should be given for resident performing artists. 5. Sean Gooding, public, said that a height variance or FAR variance will impact the historic Wheeler and will also impact his view at the Motherlode and the roof access does not have to go above code. Gooding said that the Wheeler rooftop addition will be an infringement on his property rights and recommend that the 4`h floor be gone and relocated to the multipurpose room. EXHIBIT C 8 P&Z AND HPC MEETING MINUTES EXHIBIT C Aspen Planning and Zonina/HPC Commissions August 04, 2009 6. Bill Weiner, public, presented a slide presentation and said that he was in favor of the Wheeler expansion but what was being proposed was no solution. Weiner said it was publically dysfunctional and lack the grand space that Aspen needs. He doesn't want to see the idea voted down and wants to fix it; the P&Z review was for community impact and the HPC review was for protecting the Wheeler's historic values; no public body or hearing deals with vision and what it should do or be. The public areas in the building are wide halls not lobbies and the circulation is not obvious and there was too much stuff being forced into a too small volume considering the Diva apartment, ACRA space, the third theater and there should be a sensible route going to a real ticket area, the Grand Stair, a big lobby, and a catering kitchen. A new solution for the exterior will direct us toward obvious and correct facades that pay homage to the Wheeler that looks like a public building and that reflects interior design. Weiner said it was time to rethink this whole effort with a revised program; this is our prime public space. Weiner said there should be no mediocrity in our public buildings. 7. Cathy Markle, Wheeler Board, said that this board has done studies, comments, and commentaries from physics, dancers and other performers and film groups that gave specific detailed laundry lists for the smaller performance space and rehearsal spaces. Markle said this is a civic building and the applicant is the citizens of Aspen through the City of Aspen, which owns the existing Wheeler and the current parcel next door as an adjunct as a way to serve the citizens of Aspen and its arts communities. 8. Lisa Markalunas said that the architects have made progress on the public amenity space with the views for the patrons of the theatres is positive but didn't support 4 stories. Adams said that the new entrance was an egress issue from the IBC so the primary entrance can't be through the historic Wheeler. MOTION: Stan Gibbs moved to continue the meeting until 7:30 seconded by Brian Speck. All in favor. Jay Maytin said that the architects made a comment that there would essentially be no rooftop massing. John Rowland replied that was the 4`s option with just a stair coming up. Erspamer stated there were areas of discussion. The proposed 4 foot setback of the addition remains unchanged and is present in all of the proposed iterations. Both commissions were okay with the front 4 foot setback. EXHIBIT C P&Z AND HPC MEETING MINUT1% EXHIBIT C Aspen Plannine and Zonine/HPC Commissions Aueust 04, 2009 Both commissions agreed on Alternative #4 the green rooftop. Jay Maytin said the height variance required for the apartment was too much and the necessity for the apartment did not have anything solid. Stan Gibbs asked if the public amenity would then be waived. Maytin said that the mass should not outweigh the public amenity and the building itself was a public amenity. U Erspamer agreed with Jay. Cliff Weiss agreed with Jay and wanted to see the lobby be grand and did not want to see any more height. Bert Myrin said that he would be happy with 2 stories and to have nothing on that top floor seems like the closest except for a green roof and has considered the whole building a public amenity. Brian McNellis said with all due respect he was not worried about the adjacent property owner and that this was a downtown area where density is expected and appropriate here; he understands everybody's concerns and the architect has done a good job in trying to hide that and understands the need to optimize this building and have public amenity space would be an asset. McNellis was in favor of Option 42 to provide some outdoor space as well as indoor space. Brain Speck said that he preferred option #4 but would consider public amenity space with maybe a modified #2. Gibbs agreed with Brian Speck. Michael Hoffman said option #4 has a clean roof line from a historic preservation view. Hoffman agreed with Jim DeFrancia about the apartment not being accepted by most of the performers and could be a distraction from the Wheeler for a contracted third party for those kinds of services. Hoffman said that the public support for this project would be for Alternative #4. Mike Wampler agreed with most of staff and was struggling with mass but Alternative #4 was less height and agreed that the building was a public amenity. Wampler said that the 4s' floor would be a struggle for him to vote for. Erspamer said the next topic was mass, scale and FAR. Erspamer said the FAR from code was 2.75 and Alternative #4 was 2.67. Erspamer said that parking was the next issue. Weiss said there has been no information provided on parking. Hoffman said that the whole issue of parking needs to be made a condition of approval by both boards. Adams said that the transportation and parking review was for the final PUD. Weiss said there was an apartment on site for a Wheeler employee so would that person not have a car. Weiss asked about the vehicle for the Diva Apartment. Adams said that the way the process was going to work was that HPC would decide what the actual requirement is and the thinking was discussed in exhibit C; the addition is going two floors below grade so the idea of a parking garage is out of the question. Adams said that in terms of the building being a public amenity they want to utilize the lot as much as possible in its highest best use of this parcel for the arts community. Adams said that was why staff was recommending a zero parking EXHIBIT C ' n P&Z AND HPC MEETING MINUTES' EXHIBIT C Aspen Plannine and Zoning/HPC Commissions August 04, 2009 requirement. Hoffman said that this was a political issue not a staff issue. Hoffman asked that if staff can show that the traffic impacts will be handled. Adams said that it was conditioned on the final PUD. Speck said that parking in town had to be dealt with at some time especially since it has been postponed with so many projects. Weiss said that we were going to deal with the transportation plan at final and what we were talking about here was that employee and all the rest of the parking was at issue. Myrin asked if the parking was an HPC thing. Erspamer replied correct and P&Z is the referral. Adams said just to be clear in the commercial core there is no parking requirement for residential units. Erspamer said this is a tragedy for the Wheeler because of the failure of the elected officials to handle this vital need in our town and there is a mission to tell citizens that parking was not needed in our community and he strongly rejected that however we are near a transportation site so this would be a great opportunity to buy into a project that the city needs to build but they are not going to build one. Maytin said the applicant was required to provide a certain amount of housing either on site or off site. Adams said after the conceptual PUD was granted by City Council there will be an application by Growth Management and the Planning & Zoning Commission is charged with establishing the employee generation rates for an essential public facility so they will decided how many employees are generated with the addition and then it will go to City Council who will decide the type of mitigation and the degree of mitigation that needs to occur for the number of employees generated. Maytin asked if the actual caretaker of the Wheeler would get to live in the Wheeler. Adams responded that you can request that the affordable housing unit be rental when associated with a business. John Rowland brought a 15 second video showing the building from Aspen Mountain but since the 40' floor seemed to be off he would not show it. Rowland said that the parking issue was something to give thought to. MOTION., Stan Gibbs moved to continue the meeting to 7: 45, seconded by Brian Speck. All in favor. McNellis said that if a variance was needed for a green roof access then we should accommodate for that and recommend for a variance for that respect. Maytin said he didn't know if a variance was necessary at this point since there will be no public access if the commission goes that way and is there really anything needed for a worker to go up there. Maytin asked what kind of activity needs to happen on the green roof when there is snow up there; outside of clearing solar panels. Maytin said that one of the accesses shown on July 8t° was a door coming from the EXHIBIT C P8Z AND HPC MEETING MINUTH EXHIBIT C Aspen Plannine and ZoninzWC Commissions August 04, 2009 Wheeler Theatre and that could still be utilized to access the roof without putting any mass up there. Hoffman said this was a public entity coming before the commissions asking for an approval, and it is the Wheeler Opera House, which is near and dear to ever person in this room. Hoffman said the additional program that is being requested by the applicant is going to be a fantastic public amenity; there would be all sorts of groups utilizing the facility. Hoffman said the green roof was a great solution and a floor area variance would probably not be needed. HPC referred P&Z to the approval of the green roof. LJ Erspamer said it would be a great public amenity to have people up there. Cliff Weiss said that the building is a public amenity and the applicants have bent over backwards to meet a lot of comments and the 4"' floor would not get that much use. Weiss did not want the mass and scale but wanted the grand lobby area. Bert Myrin said the Kandycom building had open space on the roof and is not used. Myrin did not support the use of the roof. Brian Speck said that in the future the applicant could come back for that 4`h floor space. MOTION: LJ Erspamer moved to adopt P&Z Resolution #12 seconded by Brian Speck with the amendment to trip generation study and traffic impact study with the criteria from the National Highway. All in favor, APPROVED. MOTION: Brian Speck moved to extend the meeting until 8:00 seconded by LJ Erspamer. All in favor. Discussion: LJ Erspamer stated that he wanted to see the transportation study provide traffic counts, delays and things like that. Myrin asked if they could delete 3A from the resolution. MOTION: Bert Myrin moved to approve Resolution #12 with alternate #4 with a green roof and a stairwell for maintenance only seconded by Brain Speck. Roll call vote: Speck, yes; Wampler, yes; Erspamer, yes; Weiss, yes; Myrin, no; Gibbs, yes. APPROVED 5-1. HPC Major Development Conceptual Review. LJ Erspamer voiced concern for the big wall. Cliff Weiss said there was a cutaway walkway on the first floor. Bert Myrin said this went back to the 6.32 adjacent to the MotherLode not the Wheeler. MOTION: LJ Erspamer moved to extend the meeting to 8: 30 seconded by Bert Myrin, APPROCED 5-1. EXHIBIT C 7 P8Z AND HPC MEETING MINUTES EXHIBIT C Aspen Plannine and Zonin&WC Commissions Aueust 04, 2009 Michael Hoffman read Ann Mullins letter into the record. Jay Maytin said that he looked at this as the building between two historic structures, the Wheeler and the MotherLode; he said that he was for the expansion but maybe there could be a better building. Maytin said the weight of the mass takes away from the bookend of the Wheeler. Brain McNellis said that he felt this was appropriate for this end of town and this block. McNellis said that the details of the fenestration could be worked out and the three stories were appropriate in this location. Hoffman said the architecture was equal to the task and the design team listened to HPC and agreed that P&Z's decision for the height was good. Hoffman encouraged the design team to make that box the best possible addition to the Wheeler. Maytin agreed with the consensus not to have a fourth floor. MOTION: Michael Hoffman moved to adopt HPC Resolution #16 removing the parking and deferring parking to final seconded by Jay Maytin. Roll call vote: Maytin, yes; McNellis, yes; Hoffman, yes, APPROVED 3-0. Joint Review for Commercial Design Standards. Mike Hoffman said that the public amenity was the whole building. Sara Adams said that you could just waive the public amenity entirely. MOTION: Cliff Weiss moved to approve joint resolution HPC #17 and P&Z 413 seconded by LJErspamer. Strike the floor area from the Resolution. APPROVED 5-2. Myrin and Erspamer no. HPC adjourned. LJ Erspamer asked Cliff to speak on the Lift One COWOP. Cliff Weiss volunteered to be on the Lodge at Aspen Mountain COWOP. Adjourned at 8:30 pm. Lothian,beputy City Clerk EXHIBIT C P&Z AND HPC MEETING MINUTg$ Exhibit D DRC- July 22, 2009 DRC Meetine Minutes for Wheeler Expansion: Parkine (Blake Fitch): • Detailed representation of impacts during construction on existing parking? • What is Wheeler doing to help mitigate already congested area? Building (Denis Murray): Here is a list of concerns from the conceptual submission plan review: • Building type of construction and allowable area. • Continuity of exit enclosures and exit paths. • Interconnection of more than two stories. • Encroachments into the ROW. • Accessibility to the seating, bars or counters, and parking. • Construction management plan for the existing facility to address the exiting, fire and life safety requirements while the proposed work is under way. Housing (Cindy Christensen): • Need detailed numbers for employee generation. Environmental Health (Lee Cassin) - focusing on air quality: # of truck trips per day during construction Use the ITE to determine trip generation rates after the addition is built. Need a detailed transportation/ air quality plan: specifically, impact on RFTA and how Wheeler is going to encourage alternative transportation Stormwater (April Barker): • Need to treat for the existing Wheeler and the new addition. • Option to handle the water quality with a green roof- probably 50% of the roof addition • Show actual greenroof on conceptual plan • Need definite plan/confirmation at conceptual review about how Wheeler is mitigating Engineering (Tricia Araeon): • Need full drainage plan at Final Review stage • How is Wheeler handling the Street trees in the ROW? — maintain or replacement? Show how they will be handled during Final and include in the CMP • Need full transportation plan o Level and quality of service DRC Meeting Minutes/Comments Page 1 of 4 Exhibit D DRC- July 22, 2009 o What is Wheeler contributing to Hyman/Mill corner and Mill/Main corner to accommodate bike lanes (mill/main specifically) and all modes of transportation improvements • Excavation/Stabilization o No soil nailing in the alley ROW because of utility corridor o Hyman side- stabilization in the ROW is ok o Motherlode side- need permission to underpin on Motherlode property o How will existing Wheeler be stabilized? o What is the timing for construction- specifically when will the sidewalk need to be closed at the corner of Hyman/Mill? Transportation (Lynn Rumbaueh and John Krueeer): • Need detailed transportation plan that includes: o Trip generation and mode split • Need Transportation Demand Management Plan that includes: o Methods of promoting alternative transportation o Minimizing congestion/transit delays at Mill and Hyman o Encouraging those who do drive to park at the Rio Grande Parking Plaza. • How does person get to the Wheeler from their SOV/parking space? • Need more information on the current location of the Wheeler and available transit opportunities. • Impact of people parking at Rio Grande Garage walking across the Hyman/Mill comer on RFTA route, scheduling. • Trip generation and traffic improvements, impacts of addition/more program on RFTA galena shuttle schedule. Fire (Ed Van Walraven and Brian Nichols): • Does Wheeler want to be open during the project? • Coordinate the closing of the Wheeler and ensure proper lifesafety issues during project. • When will the connection occur and will the Wheeler be closed? • Fire Department submitted direct comments to the applicant. Sanitation District (Tom Bracewell): • Need plan for taps • Need soil stabilization • Need mechanical information • How is the oil/grease interceptor going to be handled? Cannot put it in the ROW. o Check out the pipe design at the Doerr-Hoiser Building DRC Meeting Minutes/Comments Page 2 of 4 Exhibit D DRC- July 22, 2009 Recommend taking this information to Sanitation to approximate sewer fees asap. The applicant will have to pay 40% of the estimated tap fees for the anticipated building stubouts prior to building permit. Soil nails are not allowed in the ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. Note: the followine Departments did not attend, but submitted comments: Water (Phil Overevnder): • The existing 2 '/z water tap line will need to be increased to I" • Jerry Novotny spoke with Same Irmen in the City and confirmed that the tap fee range for the expansion will be between $41,000 to $80,000. • The possible need for a fire pump was brought up by Jerry Novotny. • How is current building water metered? Are there submeters for Bentley's and rental space. • Phil Overeynder will review the plumbing schematics with Sam Irmen. Parks (Brian Flynn): An approved tree permit will be required before any demolition or access infrastructure work takes place. Please contact the City Forester at 920-5120. Mitigation for removals will be paid cash in lieu. Planting in the Public Right of way will be subject to Landscaping in the ROW requirements. The area in front of the proposed expansion is part of the DEPP improvement plan and all changes or improvements to the ROW should follow these standards. Building permit plans shall include a detailed plan submitted for Tree Protection within the City Right of Way: • Tree protection fences must be in place and inspected by the city forester or his/her designee (920-5120) before any construction activities are to commence. • No excavation, storage of materials, storage of construction backfill, and storage of equipment, foot or vehicle traffic allowed within the drip line of any tree on site. • There should be a location and standard for this fencing denoted on the plan. Utility connections should take place outside of the public right of way whenever possible. Utility connections through the pedestrian ROW should be designed for minimal impact and disturbance. Parks strongly recommends all utility connections be accomplished with either directional boring and or trench boxes. The Park houses the irrigation control and the backflow preventer of the entire City of Aspen right of way located along Hyman Ave. and Mill Street. A space for these items will need to be DRC Meeting Minutes/Comments Page 3 of 4 Exhibit D DRC- July 22, 2009 planned for in the new structure. Coordination with the Parks irrigation crews on proper installment. Overall sentiment is to meet with depts. individually and get a handle on approximate fees for the project. DRC Meeting Minutes/Comments Page 4 of 4 T 609452-1777 Farewell Mills Gals h F 609.452.7192 a rc'hl i eCts «c 200 Fo,mlal Road Princeton, W 08540 www.fmg-orch.com MEETING SUMMARY March 26, 2008 Proiect: Wheeler Opera House City of Aspen Engineering and Building Department Meeting Project No. 0901 Date and Time of Meetin ,. March 26, 2008 at 4:OOpm MT Attendees: Steve Bokros Jerry Novotny (via phone) Sarah Broughton, AIA Stephen Kanipe Phil Overeynder April Barter Steve Bossart Schmueser Gordon Meyer (SGM) Boulder Engineering Company (BEC) Rowland & Broughton (R&B) City of Aspen - Chief Building Officer City of Aspen Engineering — Public Works Director City of Aspen Engineering — Storm Water Manager City of Aspen Asset Management Issues discussed Res . 1 Storm Water: • The City is instituting new requirements starting this summer. The draft has not been issued yet. • A drywell under the expansion is the last resort for the City. • Detention requirements: Needs to at least hold a five year storm. Need to be able to pass the 100 year storm. Engineering has waived this requirement in the past, but still need to pay the system development fee. • Green Roofs: R+B gave team the brochure on Live Roofs. April Barter is interested and has the following questions: • How much of the roof (rough percentage) is planned to be covered in green roof? • What is the material and porosity of the soil? • What is the storage volume of the green roof (simple cala... storage volume = green roof area *soil depth *soil porosity) • What is the absorbtion ability of the root zone? • What are the anticipated transpiration and evaporation numbers? • What event will produce runoff (I'm guessing many events will be simply absorbed and produce no runoff)? • Where will runoff go — how will it get to stormwater system? • We will need a maintenance plan that ensures the system is being maintained to at least provide for the water quality capture volume. • Can the plants survive under lots of snow for long periods of time? • Is there a reference I can call? • Roof must function without application offertilizers, pesticides, or insecticides. • Green Roofs: Stephen Kanipe is 50/50 on the green roof concept but is willing to understand the Live Roof system. He suggests that the team reference Stipert's article on green roofs on BuildingScience.com. SGM • SGM to follow-through on whether the existing Wheeler's stormwater is tied to stormwater system or sanitary. • It was discussed that the existing Wheeler's stormwater will need to be included in the overall stormwater quantity calculations for the entire project. April Barter responded on 3/27/09: "We are waiving detention requirements larger than the water quality capture volume. And the water quality capture volume is based on percent imperviousness, so if you cover the entire roof with green roof that's zero imperviousness (assuming roof is all the impervious area of your site) and zero water quality capture volume (that is, if you don't have to treat existing Wheeler)." 2 Grease Trap: • Two locations were discussed: • First in the public right of way, under the sidewalk in the NE corner of the existing building. The objection is that it is in the PUBLIC right of way and private equipment should not be put there. McDonald's is the only business in town that has their grease trap in the public right of way. • Second location is in the basement of the existing Wheeler, also near the north east corner of the building. This location will require over sizing the infrastructure to help with odor issues, a continuously running mechanical ventilation system and loss of space. • Other options discussed that were not well received include putting it in the basement beneath a ground level space with a garage door or a basement mounted unit in the addition with access from the loading area. 3 Transformer: • The City will not allow the transformer to be in an underground vault. • The City will not allow the transformer to be mounted on the roof. • The basic pad mounted approach as shown on the conceptual plans is acceptable. Clearances are critical. Xcel requires 10'-0" and the City requires clearances that allows for a boom truck to be able to lift the transformer from it's location. 15% 0" above the transformer is probably okay. • Stephen Kanipe reminded the team that the fire egress path from the building cannot pass by the transformer. • The primary conduit is typically 3'-0" below the surface. The secondary conduit might be a little shallower. The team will design around these parameters. • The temporary power was discussed as possibly being on the roof. There was no clear direction. • The existing building should install signage now describing the current service disconnects (in two locations). 4 Sanitary Service: • There are currently three sanitary lines coming from the existing building. 1) goes to the sewer, 1) goes to the grease trap, 1) is abandoned. A dump test will be performed. 9 The closest main is under Mill Street. The line in the alley is not deep (consensus is that it is a 6" line 6'-0" deep). The expansion sewage needs to drain by gravity as much as possible. • We discussed the goal to have one sewer tap for building, but it was agreed that the geometry and physics of the situation would require that the addition would need its own tap. It was further agreed that the existing tap which Bentley's grease trap uses would be extended to the serve the addition. It needs to be determined if the existing 6" line in the alley can handle the flow. • A lift station is required for the expansion. • On a preliminary basis it looks like the existing 6" sewer for the existing building, in conjunction with the existing 4"(Bentley's grease trap line) for the addition should work out. • The existing unused sewer taps under from the building to the main under Mill Street must be found, per EPA. This will require digging up the sidewalk and street. 5 Water Service: • The existing 2 ''/2" water tap line will need to be increased to 3". • Jerry Novotny spoke with Sam Irmen in the City and confirmed that the tap fee range for the expansion will be between $41,000 to $80,000. • The possible need for a fire pump was brought up by Jerry Novotny. • How is current building water metered? Are there submeters for Bentley's and rental space? City • Phil Overeynder will review the plumbing schematics with Sam Irmen. 6 Generator: • Jerry Novotny reviewed the generator on the roof. He explained that this was a financial place holder which should be priced because of the uncertainty of ventilation requirements for an underground building, including the possibility of needing power for an elevator (whether or not is was required by code), and possibly a fire pump. The roof location was selected because there wasn't room anywhere else. The unit is sized as a 150kw unit, but it could range from 50KW - 200KW. • City inquired if hydrogen fuel cells an option? Or are there other suggestions for alternate power sources? • The existing building has a 1 OKW generator for the heating pumps. 7 Shoring • The City is willing to discuss the idea of soil nailing into the public right of way. There is a charge per cubic foot for nailing into the public right of way. • KL&A to confirm what is the length of the tie -back? Alley constraints could be KL&A an issue. 8 Other: • Stephen Kan ipe said that the Green Globe program from Canada is the closest and best precedent to use for the sustainable criteria on this project. • A 21b. service for gas is availalable but does not currently come into the existing building. rowland+broughton architecture and urban design MEETING MINUTES Project: Wheeler Opera House Expansion — 2852 Date of 07/07/2009 Start Time: 9:00 am Meeting: Location: Aspen Building Department Date of 0721/2009 Issue: Next Mtg: N/A Next Time: N/A Location: N/A End Time: 10:15 am Prep'd By: Sarah Broughton Company: Rowland+Broughton Architecture and Urban Design Ed Van Walraven — Fire Marshal, Aspen Fire Protection District Brian Nichols — Deputy Fire Marshal, Aspen Fire Protection District Attendees: Stephen Kanipe — Chief Building Official Denis Murray — Plans Examination Manager Michael Farewell, Michael Mills — Farewell Mills Gatsch Sarah Broughton — Rowland+Broughton (R+B) Gram Slaton — Executive Director, Wheeler Opera House CC: Randy Ready —Assistant City Manager, City of Aspen Steve Bossart — Project Manager, City of Aspen Asset Management Attachments: N/A Item: Description: Action: I Due: Closed: 1.00 Items Discussed When plans are submitted for building permit, the architects are to submit the different seating scenarios for 1.01 both the theater and the "multi -purpose" space. The Info occupancy loads will be determined for each seating scenario. There were questions about the theater seating and how the flip chairs are secured. The team is to submit product information for the final lift system chair manufacturer. There will be fire fighting implications to the seating and fire suppression may be required underneath because of Info 1.02 hydraulic fluid. S.Kanipe will be in Chicago and would be interested in reviewing a lift system if there is a good example. Or examples could be reviewed in Denver. The design team will follow-up with sites to review the lift s stem. Level LL3 is to have 5 accessible seats distributed in 2 Info 1.03 locations. Page 1 of 3 rowland+broughton architecture and urban design WHEELER — Meeting Minutes - 07/07/09 1.04 Level LL3, design team to review how the actor Info elevator/ramp work together. The design team explained that the theater is not a segregated stage and that it acts more as a black box Info 1.05 theater. The team is to also present the various stage configurations with the building permit submittal drawings. D.Murray asked about the bathroom counts and the 1.06 ejector pump requirements. The ejector pump will be Info discussed at the DRC meeting on 07122/09. There may be a requirement for more than an access panel in the theater space for fire fighting. The team is to 1.07 provide Material Safety Data Sheets (MSDS) for review Info with the building permit drawing submittal for items such as the chair fabric, etc. Level LL2, the design team is to review the common path 1.06 egress measurement. It is limited to 75'-0". Review exit Info distance from balcony box right side. Level LL2 and Level 1 had discussion about how the 1.09 enclosed stair transitions to an open stair. There will be Info alarm activated shutters at stair on Level 1. There was discussed about a three story stair and the 1.10 challenges with the code. The design team is aware of Info these challenges and the design will implement solutions. The existing Wheeler basement needs to have two means Info 1.11 of egress with an accessible route. Team to show Bentley's access routes on the plan. It 1.12 would be helpful if more of the existing information on Info Bentley's is shown on the plans. The existing exit stair will be fire rated. It was requested that we remove the existing bathroom underneath the stair Info 1.13 is removed to have it not impede with the fire rated vertical shaft. Level 1, the design team to review the egress through the Info 1.14 loading dock. Level 1, the design team to review the distance between Info 1.15 the iers at the front doors at the new entrance. Level 2, the plan needs to show the existing door at the 1.16 existing lobby. This can be a magnetic hold open fire Info door. Level 2, does the existing lobby meet code to the NE Info 1.17 egress stair? There was discussion about whether the expansion fits the description of an atrium from a code standpoint. D.Murray thinks that the atrium designation is the best Info 1.18 altenative for IBC. An atrium adds complications from a smoke control, sprinkler and fire fighting stand point. The design team is exploring. We are past the question whether the in ground theater is 1.19 considered a high rise. It is not because the overall height Info is not over 30'-0". It was recommended that the design team is to include an 1.20 engineering firm that specializes in fire protection. Info Suggested firms are Hughes and Ralph Jensen. Page 2 of 3 rowland+broughton architecture and urban design WHEELER — Meeting Minutes - 07/07/09 Level 21 does the existing north facing stair over the alley Info 1.21 show up on this Ian? Storm water management and solar collectors were 1.22 discussed without conclusion. How is the current Wheeler accessed for firefighting? Info 1.23 Plans to show this information. How is the roof over the 4 floor of the expansion and 1.24 mechanical rooms being accessed for service and fire Info fi htin ? Is the existing Wheeler classified as a 3A or 313? Is it one 1.25 building or two buildings? The classification should not Info account for the below grade space. Are there structural implications to the charred trusses in Info 1.26 the existing Wheeler? Review allowable loads. There will need to be a FPE assessment on how we are Info 1.27 doing sprinklers and water supply. Ideally there should be no encroachment into the alley from the freight elevator or stairs. We discussed adding in 1.28 bollards, however there cannot be any impediments in the Info alley. The door from the freight elevator could be a roll door. 1.29 There will be a follow-up meeting with engineering. Info In the expansion, the design team to explore how the door 1.30 opens from the egress fire stair into the alley. The door Info cannot encroach into the alley. 2.00 Next Steps All items above will be followed -up and modifications Info 2.01 where needed will occur. City of Aspen will be adopting IBC 2009 in Spring 2010. 2.02 May be helpful to review both existing and new codes for Info design considerations. E.Van Walraven and B.Nichols asked for floor plans with 2.03 room descriptions and room numbers when the plans are Info submitted for building permit. END OF MEETING This report is assumed to be a true and accurate account of this meeting, unless written notification to the contrary is received within ten (10) working days of the date of issue of this report. Respectfully Submitted, Sarah Broughton Page 3 of 3 ACSD Requirements -Wheeler Conceptual PUD 7-22-09 Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. On -site utility plans require approval by ACSD. The old service lines (5) must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements, before any and all soil stabilization measures are attempted and prior to ACSD releasing any and all permits. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. Oil and Grease interceptors (NOT traps) are required for all restaurants and food processing establishments. All ACSD fees must be paid prior to the issuance of demo, excavation and/or infrastructure permits. Peg in our office can develop an estimate for this project once detailed plans have been made available to the district. Where additional development would produce flows that would exceed the planned reserve capacity of the existing system (collection system and or treatment system) an additional proportionate fee will be assessed to eliminate the downstream collection system or treatment capacity constraint. Additional proportionate fees would be collected over time from all development in the area of concern in order to fund the improvements needed. The Applicant will have to pay 40% of the estimated tap fees for the anticipated building stubouts prior to building permit. The glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. The district will be able to respond with more specific comments and requirements once detailed building and utility plans are available. Sara Adams From: Denis Murray Sent: Friday, July 24, 2009 3:28 PM To: Sara Adams Subject: RE: wheeler comments Sara, Here is a list of concerns from the conceptual submission plan review: 1) Building type of construction and allowable area. 2) Continuity of exit enclosures and exit paths. 3) Interconnection of more than two stories. 4) Encroachments into the ROW. 5) Accessibility to the seating, bars or counters, and parking. 6) Construction management plan for the existing facility to address the exiting, fire and life safety requirements while the proposed work is under way. Denis From: Sara Adams Sent: Wednesday, July 22, 2009 3:04 PM To: Andy Rossello; April Barker; Blake Fitch; Brian Flynn; Cindy Christensen; Denis Murray; Ed Van Walraven; Errin Evans; Jerry Nye; John Hines; John Krueger; Kim Peterson; Larry Doble; Lee Cassin; Linda Chi; Lynn Rumbaugh; Phil Overeynder; Randy Ready; Rich Ryan; Richard Pryor; Shirley Ritter; Stephen Kanipe; Tim Ware; Tom Bracewell forward; Tricia Aragon Cc: Scott Miller Subject: wheeler comments Hi everybody, Thank you for your participation this afternoon. I need your DRC comments no later than Tuesday afternoon. I apologize that this is a shorter timeframe than usual, but we are on a pretty tight schedule to get this project through the conceptual process and ballot language submitted by August 241h I Please send me the packets when you are finished with them so that they can be reused for hpc and pz. Thanks again and please let me know if you have any questions or concerns. Best, Sara Date: July 23, 2009 Project: Wheeler Expansion PUD Conceptual City of Aspen Engineering Department DRC Comments These comments are not intended to be exclusive, but an initial response to the project packet submitted for purpose of the DRC meeting. Transportation Traffic — A traffic impact study shall be conducted to determine impacts of new development. The plan will need to address quality of service in additional to level of service. Intersections of particular importance include Hyman and Mill, Mill and Main. Of concern is the pedestrian and bike movements at the Mill and Main intersection and the lack of public facilities to accommodate bike movements. Another concern is at the Hyman and Mill intersection and the interaction between pedestrians and traffic. It is anticipated that the expansion will increase the time delay for busses at this intersection. Attached is a checklist to be used for the plan. Drainave General — Project packet must include a discussion of anticipated and proposed drainage patterns, water quality treatment, detention storage and outlet concepts. Stormwater collection / treatment and drainage facilities need to be presented and how they will be incorporated into the site plan. This includes the expansion area and the existing Wheeler. Stormwater Development Fee: A Stormwater System Development Fee of $2.88 per square foot of impervious area shall be assessed against all properties at the time of development or redevelopment of the property. The fee shall be assessed against the total impervious area of the development, not simply the increased impervious area. This will include the expansion along with the existing Wheeler Building Construction Management General — A construction management plan must be submitted in conjunction with the building permit application. The plan must include a planned sequence of construction that minimizes construction impacts to the public. The plan shall describe mitigation for: parking, staging/encroachments, truck traffic, noise, dust, and erosion/sediment pollution. Miscellaneous Utilities — All above ground structures shall be located outside the public rights -of -way. Detailed plans are required prior to Final — This includes drainage and utilities. Please see engineering department for specific details. Additional Project Specific Comments Stabilization Excavation: Plans showing how the site will be stabilized during excavation including any underpinning of adjacent buildings. Although a detailed plan is not necessary there are concerns that need to be addressed at this time, for example, the site will be limited to the methods used on the alley side which may shift the location of the foundation. Additionally the existing Wheeler building and possibly the Mother Load building will require underpinning. On the Wheeler side stabilization of the existing building is of concern and how this will be accomplished. On the Mother Load side permission from the property owner is required. Grease trap is not permitted in the ROW. Framework for Establishing Quality of Service Mode Quality of Service Considerations Pedestrian Presence, connectivity and width of sidewalks Lateral separation from traffic Barriers and buffers from traffic Crossing opportunities on arterial and collector roadways Delays at intersections Driveway frequency and volumes Visitor experience (national/state/local parks or at other types of recreational or entertainment venues) Bicycle Presence of a dedicated facility Network Connectivity Number and width of travel lanes adjacent to the route Volume and speed of traffic Percentage of trucks and busses encountered Pavement condition Transit Frequency and hours of service Reliability of service Passenger loads Travel times Automobile Corridor travel times Intersection delay Queue length Site Transportation Impact Analysis — sample table of contents Introduction and Summary a. Purpose of report and study objectives b. Executive summary 1. Site location and study area 2. Development description 3. Types of studies undertaken (impacts, signal warrant, site access, etc.) 4. Principal findings 5. Conclusions 6. Recommendations Il. Proposed Development (Site and Nearby) A. Off -site (or background) development B. Description of on site development l . Land use and intensity 2. Location 3. Site plan 4. Zoning 5. Phasing and timing III. Existing Area Conditions A. Study area 1. Area of influence 2. Area of significant transportation impact (may also be part of Chapter IV) a. site access points and major intersections (signalized and unsignalized) adjacent to the site. Depending on the development size , the first signalized intersection on each street serving the site could also be analyzed, if it is within a specific distance of the site as determined by the engineering dept) B. Study area land use 1. Existing land uses 2. Existing zoning 3. Anticipated future development C. Site accessibility 1. Area roadway system a. Existing b. Future 2. Traffic volumes and conditions 3. Transit service 4. Pedestrians and bicyclists 5. Existing relevant transportation system management programs 6. Other, as applicable — (ie crash analysis for 3 yrs) IV. Projected Traffic A. Site traffic (each horizon year) 1. Trip generation 2. Trip distribution 3. Modal split 4. Trip assignment B. Through traffic (each horizon year) 1. Method of projection 2. Non -site traffic for anticipated development in study area a. Method of projections b. Trip generation c. Trip distribution d. Modal split e. Trip assignment 3. Through traffic 4. Estimated volumes C. Total traffic (each horizon year) V. Transportation Analysis A. Site access B. Capacity and level of services 1. Existing conditions 2. Background conditions (existing plus growth) (for each horizon year) 3. Total traffic (existing, background, and site) (for each horizon year) C. Transportation safety D. Traffic signals E. Site circulation and parking VI. Improvement Analysis A. Improvements to accommodate existing traffic B. Improvements to accommodate background traffic C. Additional improvements to accommodate site traffic D. Alternative improvements E. Status of improvements already funded, programmed, or planned F. Evaluation VII. Findings A. Site accessibility B. Transportation impacts C. Need for any improvements D. Compliance with applicable local codes VII. Recommendations A. Site access/circulation plan B. Roadway improvements 1. On -site 2. Off -site 3. Phasing, if appropriate C. Transit, pedestrians and bicycles D. Transportation system management/transportation demand mngmt actions 1. Off -site 2. On -site operational 3. On -site E. Other IX. Conclusions MEMORANDUM To: Sara Adams, Community Development Department From: Lee Cassin, Environmental Health Department Date: July 23, 2009 Re: Wheeler Opera House Expansion, 320 E. Hyman, Conceptual PUD The City of Aspen's Environmental Health Department has reviewed the referenced land use submittal under authority of the Municipal Code of the City of Aspen, and has the following comments. Sec. 26.445.050. Review standards: conceptual, final, consolidated and minor PUD. A development application for conceptual PUD shall be consistent with the Aspen Area Community Plan. To be consistent, the development must not impose an undue burden on the City's infrastructure capabilities, including mass transit and air quality, and traffic reduction capabilities. In addition, the public must not incur an unjustified financial burden. PM-10 pollution exists in Aspen at levels shown to cause significant health effects. PM-10 in Aspen is caused almost exclusively by traffic. Therefore, keeping traffic from growing is required to keep PM-10 from increasing. There are elements of this application that at the conceptual stage, have promise for reducing air quality and traffic impacts. A condition of conceptual approval needs to be submitting a detailed trip reduction plan with specific measures that demonstrates to the satisfaction of the Environmental Health Department that air pollution and trips will be adequately reduced. Using the standard Institute of Traffic Engineers Trip Generation rates, there are two ways to estimate trip generation for this project. If only seats were being added, the trip generation would be just over 500 trips per day. However, the application includes more than seats, including multi -purpose rooms, bathrooms, lobby space, ah unit, performance space, etc. Therefore, using the trip generation rate per 1000 sq. ft. of added space is more justified. That results in a trip generation rate of 1127 trips/day. The detailed transportation plan needs to identify how most of these 1127 average daily trips will be moved to mass transit, carpooling, bicycling, and walking. We would be happy to meet with the applicant to help define and quantify measures they are considering. One of the impacts of expansions that add trips is the need to move the trips to mass transit in order to protect our air quality. This of course requires both RFTA and city transportation to provide service to handle the added trips. Ensuring that the development pays a fair share of those costs and that the public not incur the entire financial burden, requires the applicant to pay for a portion of the increased RFTA and in -town transit service. Given the present financial condition of both valley and city transportation systems, there is clearly not adequate public infrastructure to accommodate additional trips. The code requires that adverse impacts on public infrastructure by a development be mitigated by the necessary improvements at the sole cost of the developer. This would include the need for in -town and valley transit service to carry added trips, to prevent air pollution and congestion impacts. We expect that the transportation plan will show how the application meets the requirement that the recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths and transportation are proposed to be implemented in an appropriate manner. This includes how the project will accomplish encouraging transit, pedestrian and bicycle use and access, reducing single occupant vehicle use, reducing overall resource use, strategies like parking cash -out, unbundled parking, bikeway and pedestrian improvements, system to provide use of the parking garage, investment in new transit services, decreased parking, limiting traffic on Highway 82 to 1993 levels and reducing in -town traffic, and requiring all developments that that generate demand for travel to mitigate traffic impacts through support of alternative transportation modes in proportion to trips generated. Air Qualitzaraffic Minimum Standards Council has directed staff to make sure that any mitigation measures meet three standards:1) they will have to be proven, by peer -reviewed studies, to the satisfaction of the Environmental Health Department, to achieve a given reduction in trips, 2) they must be measures that cannot be changed in the future, so must be accomplished prior to obtaining a certificate of occupancy or must be unable to be altered in the future, 3) the measures cannot impose an unrealistic burden on the city for tracking and ongoing implementation. For example, reducing available parking has been shown by peer -reviewed studies to reduce some portion of trips. (The applicant's proposal not to add parking is consistent with this method.) However, providing bicycles for employees to use may have some impact, but studies have not quantified what that might be. Such measures should be part of an overall package, but probably cannot be shown to remove an exact number of trips. In order to ensure that financial impacts of needed additional transit service are not borne by the public, the applicant should provide the amount of mass transit service needed to carry 10% of the equivalent number of trips over a 30-year life of the project. The project will generate both trips on Highway 82 (employees, deliveries, etc) and trips within town (employees, clients, deliveries, etc.) Typically, we would recommend these costs be paid up -front, at Council's direction, to avoid having to continually go to new property owners for yearly cost recovery. However, in this case, since the Wheeler is a public entity, we would recommend that the costs could be paid each year instead of up -front. It is important to keep in mind that someone will pay the costs of transit to carry the added trips and recovering a small portion (10%) keeps the general taxpayers from having to pay these costs. The detailed transportation plan needs to demonstrate how the applicant will implement measures to address some of the remaining 90% of trips, including such measures as discontinuing free alley parking, limiting parking, employee bike fleets, electric vehicles/ shuttle vans/carshare vehicles, ticket discounts for patrons who do not drive, key bicycle infrastructure areas affected by this project, and/or similar measures. Annual reports will document compliance with measures proposed and allow for substitution of alternatives upon agreement with Environmental Health and Transportation. A project would be deemed to have gone beyond the normal standards and be exceptional if it paid to carry a greater percent of the trips it generates, or imposed stricter measures to reduce traffic levels. The Environmental Health department will be happy to help the applicant determine whether some measures would be more effective than others. Asbestos Prior to any demolition, including removal of drywall, carpet, tile, etc., the state must be notified and a person licensed by the state to do asbestos inspections must do an inspection. If there is no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. Recycling Area: The applicant should make sure that the trash storage area has adequate wildlife protection. Recycling space needs to be provided as well, since haulers are required to include recycling of cardboard, newspaper, office paper, and co -mingled containers for commercial buildings. Special attention needs to be paid to recycling facilities. In many downtown alleys, especially the Wheeler alley, some businesses have no space for recycling containers and can only recycle if they can share facilities with neighboring businesses. While this can cause issues for the owner of the recycling facilities, it is a city goal to increase recycling and help businesses do so. This expansion could be an opportunity for the Wheeler to provide space for shared recycling and increase recycling beyond its own walls. to �R FR !� RE Memorandum Date: June 16, 2009 To: Sara Adams, H.P. Planner From: Brian Flynn, Parks Department Re: Wheeler Opera House Expansion, DRC review An approved tree permit will be required before any demolition or access infrastructure work takes place. Please contact the City Forester at 920-5120. Mitigation for removals will be paid cash in lieu. 2. Planting in the Public Right of way will be subject to Landscaping in the ROW requirements. The area in front of the proposed expansion is part of the DEPP improvement plan and all changes or improvements to the ROW should follow these standards. 3. Building permit plans shall include a detailed plan submitted for Tree Protection within the City Right of Way: • Tree protection fences must be in place and inspected by the city forester or his/her designee (920-5120) before any construction activities are to commence. • No excavation, storage of materials, storage of construction backfill, and storage of equipment, foot or vehicle traffic allowed within the drip line of any tree on site. • There should be a location and standard for this fencing denoted on the plan. 4. Utility connections should take place outside of the public right of way whenever possible. Utility connections through the pedestrian ROW should be designed for minimal impact and disturbance. Parks strongly recommends all utility connections be accomplished with either directional boring and or trench boxes. 5. The Park houses the irrigation control and the backflow preventer of the entire City of Aspen right of way located along Hyman Ave. and Mill Street. A space for these items will need to be planned for in the new structure. Coordination with the Parks irrigation crews on proper installment. Sara Adams From: Lynn Rumbaugh Sent: Wednesday, July 22, 2009 4:17 PM To: Sara Adams Cc: John Krueger; Lee Cassin; Tricia Aragon Subject: RE: wheeler comments Hi Sara: Transportation would like to see a detailed transportation plan that includes: *Trip generation and mode split *Transportation Demand Management plan to include methods of promoting alternative transportation, minimizing congestion/transit delays at Mill and Hyman and encouraging those who do drive to park at the Rio Grande Parking Plaza. I'm sure that Engineering and Environmental Health will have additional requirements for the transportation plan. Thanks, Lynn From: Sara Adams Sent: Wednesday, July 22, 2009 3:04 PM To: Andy Rossello; April Barker; Blake Fitch; Brian Flynn; Cindy Christensen; Denis Murray; Ed Van Walraven; Errin Evans; Jerry Nye; John Hines; John Krueger; Kim Peterson; Larry Doble; Lee Cassin; Linda Chi; Lynn Rumbaugh; Phil Overeynder; Randy Ready; Rich Ryan; Richard Pryor; Shirley Ritter; Stephen Kanipe; Tim Ware; Tom Bracewell forward; Tricia Aragon Cc: Scott Miller Subject: wheeler comments Hi everybody, Thank you for your participation this afternoon. I need your DRC comments no later than Tuesday afternoon. I apologize that this is a shorter timeframe than usual, but we are on a pretty tight schedule to get this project through the conceptual process and ballot language submitted by August 24`h I Please send me the packets when you are finished with them so that they can be reused for hpc and pz. Thanks again and please let me know if you have any questions or concerns. Best, Sara DEVELOPMENT REVIEW COMMITTEE MEMORANDUM TO: Sara Adams, Historic Preservation Planner FROM: Errin Evans, Current Planner DATE OF MEMO: July 23, 2009 DRC MEETING DATE: July 22, 2009 RE: Planned Unit Development Application Conceptual Review COMMUNITY DEVELOPMENT DEPARTMENT ZONING COMMENTS: This project was reviewed under several sections of the City Land Use Code. There are a few items that need further review and/or Council approval. Some of the issues that do not meet the standards of the Code are up for negotiation through the land use process. In this memo, anything that does not appear to meet the standards of the Land Use Code is mentioned but may be addressed throughout the approval process. Several of the dimensions proposed for the project are different than what would normally be permitted by the underlying zone district. The applicant will need to receive approval from the City Council to proceed with the discrepancies under the Planned Unit Development Review. The differences are summarized below: Commercial Core Zone District 26.710.140: - Height o Proposed 51-53 feet o Permitted 38- 42 feet depending on Commercial Design Review - Floor Area o Combined • 2.75:1 maximum • 34,469 square feet proposed (combined new and addition) ■ 33,000 square feet permitted by underlying zone district o Commercial ■ 2:1 maximum for commercial uses ■ 6,737 square feet of net leasable area proposed (combined new and addition) ■ 22,610 square feet permitted by underlying zone district o Arts, Cultural and Civic Uses, Public Uses, Recreational Uses, child care center, and similar uses: 2.75:1 ■ 27,732 square feet proposed (combined new and addition (commercial area subtracted) ■ 33,000 square feet permitted by underlying zone district o Public Amenity Space ■ 26,575.030 Public Amenity • The Planning and Zoning Commission and the Historic Preservation Commission have the authority to accept alternative methods of meeting the public amenity requirements o Under Commercial Design Review, the Commissions may reduce the area required if the project proposes a positive contribution to the pedestrian environment not to be less than 10% of the requirement. HPC may waive the entire requirement. 0 2826 square feet or 25% of the parcel is required to be open space o This application provides 828 square feet or 6.9% of open space Growth Management Quota System: Essential Public Facility o Essential Public Facilities are analyzed for its unique employee needs. o As per 26.470.100 Calculations, Office uses create 4.1 employees for each 1,000 square feet of net leasable space and Commercial uses create 4.1 employees for each 1,000 square feet of net leasable space ■ The applicant states that 2 new employees that will be generated as a result of the addition to the Wheeler to mitigate for the new theater space. An employee audit will be required after the Certificate of Occupancy is issued. • The net new office space appears to be approximately 2,015 proposed — 1,375 existing = 640 square feet. (640 / 1,000 * 3.9 = 2.5 new employees) ■ The new commercial space creates 2,186 new square feet of net leasable space. 2,186 / 1000 * 4.1 = (8.96 new employees) • A landmark may receive approval to be exempt for mitigation of four employees. kE O| 0 �) || $M §■■■#w#w :: :: �: ® )§ | e\\IN §§ ` §§ 2\2 to0\ \ V CS ■������� ■ ■ ij , to■ §2/§/\!\ | \ \0 § §/§ /� ■ ' !- 8!Q`�US !�! 2K( !|§§`!®�|`§!§! `se� !§,§|*w::\ (�§\\#�)§k\!|§�§j§k�\ |§!_!•� §f!k(kk[ §|§$■§Be&@`»§�0 ■:e.. . %% �' 2� c�n1=_e §0000ED. � >,e w!w#! aJ l��j}\�\�\ E§K �tn !t � „ _ � �_;, ! ,, ■�� ,,._ ■ -!■-elw� w - §°°`!!°!\ | � ! ■!!&E!w!>w [°! ! ,0. 0. / Z - / \§ / ! w ` !! \ \ |!§ �(-. wD;- - - .� a)���gI §§.§� /§I§ �§!§I;t0 R<,w - !. \ )\§\t §\;4, < !!§]§]!:)4| z \|)§ ..,� �\)\)\\)/� aspen 117 s. monarch street, aspen co 81611 - t 970.544.9006 - f 970.544.3473 denver 3377 blake street #106, denver cc 80205 t 303.308.1373 - 1303.308.1375 online www.rowlandbroughton.com-office®rowlandbroughton.com to 2 O r a Z j O U H J a � U W a Z a W W O OO O J J LL LL 2 LL W O o rZ �a a N LL LL LL LL H J (/J .. u) .. y ul Cr) m O O O0 N ei N W 0 LL O O 00 O Z O O J J a LL LL LL LL H J N N � (0N W U) LL jh m N O r r N N aD m N m m M m J m N O n r O Q CD m m N (V nj (O N W M Z m � W N w m N Co O A O Q 0 3 O O nj O N 2 O r N N N CM Q W LL LL LL LL LL H J N � (f) Cr) CO y LL a o N M o Y N M m m m M n m J G N m m (� O M m V ¢ 2 h- h W w m CoCon _ n CO _ O N O N 2 N N J m N m Q W It 2 W Q O O O O ¢ C oc O W O LL Q 2 W Z Q W U O W an W W W O CC mro0 r 0 MEMORANDUM TO: Mayor Ireland and City Council FROM: Gram Slaton, Executive Director THROUGH: Randy Ready, Asst. City Manager DATE: 1 September 2009 RE: Identified Issues Regarding the Wheeler Expansion SUMMARY: The purpose of this memo is to present three points that we have heard raised in the community relative to the Wheeler expansion project, as City Council considers the conceptual PUD plans for this project. Several of these issues were also noted at the July work session Wheeler staff and the architectural team had with Council. The three points are: Need for an expanded Wheeler Opera House Impact to long-range financial planning Programming statement for Wheeler theatres bookings DISCUSSION: After five joint meetings with the Historic Preservation and Planning & Zoning Commissions, the Wheeler Opera House received conceptual approval for all points of the proposed building program except for the fourth floor (the artist apartment/public amenity space). This provides a well-defined total envelope for refining the building's program plan, so that now issues such as setback, impact to traffic and parking, the stylistic interface between the 1889 Wheeler and the expansion, and many other points can be deliberated as this project moves through the review process. However, there remain some lingering general concerns that staff wishes to better address through this memo as part of the conceptual PUD packet material. The Needfor an Expanded Wheeler Opera House The need for an expanded Wheeler Opera House was recognized at least as far back as 1974, when the Music Associates of Aspen brought theatre consultants to town for a thorough review of the semi -renovated historic building and how it might best be developed for the latter part of the twentieth century. Theatre professionals such as Christopher Jaffe of Jaffe Acoustics and independent consultants such as Arts Development Associates (Minneapolis) reviewed the need for an expanded Wheeler from separate points of view of practicality and expressed need and came to the same conclusion: That "a renovation program that does not include the construction of new ancillary facilities in a tower core or underground, will not ... meet the communities' desire for expanded usage." The Wheeler reopened in 1984, without the expected expansion due to financial, design, and programming issues. Over the years since, the Wheeler has come to define its best uses and better learn what kind of expansion facility it truly needs, both for internal usage and from the expressed needs of the user groups whose bookings make up the lion's share of the Wheeler calendar. It is from this knowledge base over the past 25 years that the present Wheeler expansion plans have been formed. One question we have heard is "Aren't there already enough venues in Aspen?" Hence, it may be helpful to review the list of available non -Wheeler buildings and their strengths and shortcomings: • Harris Hall (approx. 500 seats) and the Aspen Music Festival Tent (approx 2,000 seats). Owned and operated by the Music Associates of Aspen, Harris Hall and the Festival Tent are used primarily by the Aspen Music Festival and School, and only recently have they made the venue available during the ten weeks of summer for partnership situations with other area not -for -profits. In the winter, the Festival Tent is closed and Harris Hall is available as a four -wall rental, but without any support staff (technicians, box office, front of house) and only on a limited basis. Built with classical music rehearsal and performance in mind, and later retrofitted with a movie screen for film exhibition, Harris Hall does not lend itself well to theatrical or amplified music uses. Winter usage is impacted by Harris Hall's remote location relative to the downtown core, and parking requires that a lot be plowed and kept open, which often requires an additional fee. • Paepcke Auditorium (approx 300 seats). Owned and operated by the Aspen Institute, Paepcke Auditorium is another limited -use four -wall situation without support staff or flexible technology for true performance -venue purposes. It offers a convenient seating size for most Aspen arts groups' smaller -hall needs, but offers no wing space or variety of technology for much beyond lecture or film exhibition programming. Paepcke also is removed from the downtown core, which can cause traffic and parking problems in the West End. Paepcke does not have its own box office. • The Given Institute (190 seats). The Given Institute is owned by the Regents of the University of Colorado and operated under the supervision and direction of the School of Medicine. Its auditorium is "in the round" and limited to speaker/lecture presentations and private events; it would not serve as a theatrical or concert space easily. It also features a library that can seat 30 at a long boardroom type table, and three breakout rooms that can accommodate up to 30 people in each space. It has limited technical support and no box office facility. • The District Theatre (approx 500 seats) and Black Box (99 seats). Owned and operated by the Aspen School District, these facilities are primarily for educational purposes, with a fair amount of access for arts group usage especially in the summertime. Neither space offers true backstage amenities (particularly dressing rooms), and both come as four -wall rentals without support staff other than a resident technician. Scheduling for outside groups is secondary to school purposes, which are increasing. The 500-seat District Theatre is an excellent stage for dance and musical theatre, with acceptable wing space, depth, and a fly loft. The Black Box is as fundamental as the name implies, and its seating is limited at 99. These theatres are located well outside the downtown core, although they do have the benefit of a large parking lot for users and patrons. Neither space offers its own box office services. • Belly Up Aspen (approx 400 standing capacity). The Belly Up is a privately owned and operated nightclub with a very small stage, without height, width, or depth, or formal seating area. While it is an excellent venue for live music (mostly amplified), it is a difficult venue for theatre, film (video) exhibition, or dance. The Belly Up is programmed by its owner for well over 300 days of the year, making usage by outside groups difficult to acquire. It does feature its own box office services and a full support staff. It is located in the heart of the downtown core, which is a major positive. • The flexible -use space at the Red Brick. Truly a four -wall space, the flexible -use room at the Red Brick holds classes, rehearsals, and occasionally serves as a screening room for various not -for -profits. It is in constant high demand, making increased availability unlikely. It offers no resident technology or support staff. While it could be used as a theatrical or concert venue, the lack of acoustical treatment in the space means that a user would need to bring in significant sound baffling and support. It also lacks seating and has no box office services. It is located in the downtown core, which is seen as a strong plus. The expansion plans for the Wheeler Opera House include elements that answer the cost, availability, and facility shortcomings of our historic venue as well as the multiple other venues in town. Wheeler staff has since 2004 regularly met with and engaged arts user groups to determine how best to use the extremely limited footprint available through an expansion to answer their considerable needs. Below is a representative showing of support from anticipated user groups of all sizes for the expansion facility: • "The Wheeler expansion would be the absolute perfect venue for presenting community -based theater productions on an ongoing, year- round basis, because it offers the size and technical support that these kinds of intimate productions need." — Barry Smith, writer/performer/ producer • "The Wheeler Associates would relish the Wheeler Opera House expansion and could really use both a summer stage as well as a smaller stage option that would give us greater opportunities to present emerging artists." —Rodney H. Jacobs, President, the Wheeler Associates • "The Aspen Music Festival and School welcomes the expansion of the Wheeler Opera House to further support the thriving arts community in and around Aspen. The continued support of local arts organizations with the expansion of the Wheeler is critical to both the economic and ,cultural health of our town; AMFS looks forward to being one of the many constituents that could equitably share in the success of an expanded lobby, new entertainment areas and a flexible theater space." — Matthew Loden, General Manager, the Aspen Music Festival and School. • "Aspen Public Radio has semi-annual public events with prominent NPR journalists and personalities and the opportunity to have a flexible usage theatre in which to present these would be terrific. Although the City of Aspen is truly fortunate to have many wonderful presenting facilities, they are often busy, too big for our purposes, or out of our budget. The Wheeler's new stage would greatly assist Aspen Public Radio with these public presentations." — Andrew Todd, Executive Director, Aspen Public Radio Can there be so many venues available in and around Aspen that the construction of a Wheeler expansion would be redundant? By the evidence of those local arts groups and community members who would most benefit from its creation, an expanded Wheeler would not only complement the historic Wheeler and the many venues already in town, but in fact take significant pressure off of these venues while also adding a year-round space whose primary purpose is to serve the arts producing community. Impact To Long -Range Financial Planning Rightfully, concern has been voiced about how a prospective $30 million project could impact the future finances of the Wheeler Opera House. Wheeler staff, the Finance department of the City of Aspen, and the independent Financial Advisory Board have begun to carefully weigh various scenarios for how the Wheeler could finance this expansion without jeopardizing the future of the Wheeler. The financial pro forma work can be completed once the project receives conceptual approval and there is a solid definition of the working envelope and program plan for the project. First, staff recommends that if this project is approved by City Council, that a ballot question to extend the 0.5% Wheeler RETT beyond its 2019 expiration date be placed on the November 2010 ballot. In further considering how the Wheeler might compensate for the investment of RETT reserve funds in the expansion, it is important to understand the cost of what the Wheeler traditionally does: Bring in high -quality performances and other programming that operate with a subsidy to maximize access and keep ticket costs down. Nearly every high -profile event produced or presented by the Wheeler requires funds far in excess of what the event can recoup through ticket sales. As programming is the largest piece of the non -payroll operating expenses of the Wheeler, its impact can be adjusted based on the direction of City Council and the City Manager's office. Currently, our directive is to maintain Aspen's reputation as the #1 resort destination in the nation, and in order to do that the Wheeler takes on the considerable expenses of talent, stage costs, labor, marketing, and staff time to achieve this goal, while offering ticket prices that are deemed reasonable for the Wheeler's local and guest public. If annual finances become an issue after the completion of the expansion due to a continued downturn in real estate sales or other factors, our first recourse would be to trim the "one-off' artist bookings that fill a fair portion of our calendar, while seeking to maintain the signature events that the Wheeler produces (i.e., our Christmas -to -New -Year's week offerings, series produced with local celebrities, and our multi -day festival events). The Wheeler could operate much more closely to a pure rental house, temporarily lowering our profile until finances and the market present the opportunity to raise it again. The Wheeler and City of Aspen also have yet to explore the possibility of attracting donors to the expansion project through a capital campaign, which is a standard practice in the arts and one that we have held back on exploring until we have a better idea of projected construction costs and overall viability of such a campaign. These are very difficult times for local arts groups, and the Wheeler is concerned about anything that presents a perceived competition for donor dollars; however, we also feel safe in saying that there are members of the greater Aspen community that would be interested in making a significant gift to such a capital construction project, which could make a meaningful difference in closing the gap between available funds and projected costs. Staff is also exploring the possibility of selling historic facility tax credits to offset up to 20% of the construction cost of the project. Selling tax credits could add between $3 and $4 million in cash towards the expansion, which would not only help close the gap between available funds and actual construction cost, but would also remove any need for debt financing. The tax credit financing and the removal of annual debt payments would mean that the RETT balance could begin to rebuild immediately. Since the primary purpose for the Wheeler expansion is to provide an additional, small venue that is sensitized to the needs of the local arts and non-profit community, with an appropriate seating size for what historically has been needed for such events, Wheeler management sees the majority of new venue usage coming from rental and community -event situations where the Wheeler is at no financial risk, and where appropriate (and subsidized) rental fees will make access to that space attractive to user groups. These events and users would include the Aspen Center for Physics winter lecture series, a portion of the Wheeler Film Society screenings, Aspen Film for additional screenings and ancillary event needs, Theatre Aspen rehearsals (summer) and limited -run performances (winter), possible JAS After Dark concerts, the Winter Words festival by Aspen Writers' Foundation, performances by Hudson Reed Ensemble, Pegasus Theatre Company, and much more. Because of the economies of scale of operating spaces simultaneously, the actual subsidized cost of running the new space alongside usage of the historic Wheeler stage would be minimal, while greatly adding to the artistic and cultural vitality of Aspen and its downtown core. Also, the design team has been charged with creating an engineering scheme that will incorporate the latest green technology and have the entire Wheeler facility operating at a zero -sum additional carbon footprint, thereby eliminating much of the fixed costs associated with start-up and shutdown of the venue. Programming Statement It has been suggested that the Wheeler generate a formal statement regarding how the new venue would be used and how booking opportunities would be evaluated after the completion of the expansion. A draft Programming Statement is included here as Attachment B, to indicate how the primary purpose of the Wheeler expansion to accommodate the needs of the local arts groups and the Aspen community could be accommodated. RECOMMENDATION: Wheeler staff and board recommend that City Council approve the conceptual plan for the Wheeler expansion, as previously discussed and approved by the Historic Preservation and Planning & Zoning commissions. Staff will return as part of the final PUD approval process with much greater detail about the financial pro forma, operating plan and proposed mitigation plans for the new facility CITY MANAGER COMMENTS: ATTACHMENT A: DRAFT WHEELER OPERA HOUSE PROGRAMMING VISION STATEMENT September 18, 2009 Draft The Wheeler Opera House is thrilled to anticipate that by the middle of 2013 there may be two fully -operating theatres in downtown Aspen for use by all presenting entities in the Roaring Fork Valley — the 503-seat historic Wheeler stage and a new, flexible underground theatre in the Wheeler expansion, expected to hold a maximum of 265 seats. An additional flexible -use space is also anticipated to be added, opening up opportunities to satisfy a number of other needs identified by the arts and cultural community. In order to operate these spaces in a clearly -articulated fashion, Wheeler management would like to propose the following programming vision statement, which can be revisited annually for better clarity based on actual usage. The Wheeler Opera House is a locally -serving cultural asset, and is dedicated to making its stages available for rental at reasonable rates for all not -for -profit and for -profit entities that wish to use it, with a particular bias towards locally -based and locally -serving organizations in the Roaring Fork Valley. • The Wheeler Opera House is also a presenting entity, charged with maintaining a programming profile in keeping with the City of Aspen's mission of furthering Aspen's reputation as America's premiere resort destination. • Therefore, in order to effectively balance these two directives, the Wheeler plans to construct a new, smaller theatre for the primary purpose of absorbing much of Aspen's locally -driven programming needs, when those needs require a more intimately -sized venue than the historic Wheeler stage and 503 seats. • The priority for bookings in both the historic and expansion theatres is suggested as follows: ➢ The Wheeler Opera House shall have priority for booking in both venues at peak times of year and at key guest occupancy times (Christmas to New Year's, Presidents Weekend, Fourth of July week), in order to fulfill the City of Aspen's goal as stated above to provide high -profile popular entertainment options at extremely reasonable prices. ➢ The Wheeler Opera House shall have priority for booking in both venues for any multi -day festival or mini -festival for which the Wheeler acts as producer or co -producing partner. ➢ First rental/usage priority in either venue will be given to multiple -day events that are established in the Wheeler's presenting profile. These currently include the John Denver tribute concerts, Aspen Skiing Company's "The Meeting," Aspen Filmfest, Aspen Shortsfest, Warren Miller movies, Aspen Center for Physics lectures, Aspen Day School and Aspen Community School student productions, and any future evergreen bookings that take on a similar profile and audience -draw. ➢ Non -Wheeler produced festivals (Aspen Filmfest, Aspen Shortsfest, JAS Junefest, Summer Words, Winter Words, etc.) will have priority for booking in both venues within the timeframe of such festivals. ➢ The Aspen Music Festival and School shall continue to have full authority over the historic Wheeler during the summer season, as outlined in its ongoing Agreement with the Wheeler through August 2034. ➢ Priority for single or multiple -day bookings in the expansion theatre will be given to Roaring Fork Valley arts presenters for all periods of availability other than the periods and conditions listed above. These bookings shall be on a first -come, first -served basis, and bias shall be given to the presentation of live and/or interactive (presentation and speaker) public events. If local groups do not book within 60 days of a certain peak period date, the Wheeler has the option to book other event(s) for that date. ➢ Priority for single or multiple -day bookings in the historic Wheeler theatre will be equally shared between Wheeler programming and Roaring Fork Valley arts presenters. Emphasis will be given to anticipated audience size in consideration of non -Wheeler -presented bookings in the historic theatre. Audiences of 250 or less will generally be better -accommodated in the new venue. ➢ Through the ten -week summer period when only the new stage is available for community bookings, the Wheeler will endeavor to coordinate multiple daily bookings in day -part blocks, in order to better share the space among Aspen's presenting community. ➢ Programming of the multi -purpose room shall be open to all on a case -by -case basis, and programming usage may be limited to day -part blocks, so that this space may be more fully available to all, particularly at peak -need times of year (e.g., early/mid summer). This room will also be folded into the inventory of spaces made available to presenters of festival situations during the dates of such festival(s). ➢ The Wheeler welcomes programming ideas for both venues. Upon completion of the expansion, the Wheeler would be particularly interested in soliciting programming for the new venue from September through mid -December and April through May. The Wheeler is a treasured community asset, and its staff looks forward to making the expanded Wheeler fulfill the needs of local arts groups and the Aspen community to the maximum extent possible. Let us know how we can serve you! a s p on 117 s. monarch street, aspen cc 81611 , t 970.544.9006 - 1970.544.3473 den ver 3377 blake street 8106, denver co 80205 t 303.308.1373 - f 303.308.1375 o n 1, n e www.rowlandbroughton.com - office® rowlandbroughton.com LL LL LL LL LL H J N 10 ul (O y LL W ti QO V O N V O N � th ONi N m O e: LL O J w LL 7 O w !n Q LL CO O 7 3 O y O r O O O N O Z O O a LL LL LL LL LL H J fn N y ul N LL l!) r m t0 N N O O (O CJ n f0 C; C N n Z m y y Um fwil (LLn Q O N O O Q O N O N o N Z o n N N N f7 a w LL LL LL LL LL F 7 !n LL A O N r O V t0 O th m n a ao m r r N v n m m U o ro v U, i v mi Z ti 41 LL LL LL l WW m y fn N y Q O n 3 O u1 r O O H Z o Q N N Q W Iq Q ¢ O O W � It rz Q J LL O C Q 2 W Z w It ° m Q W W Co W W O LU J LU 0 = ti ti d C r r o w m 0 117 s. monarch street, aspen co 81611 1970.544.9006 - 1 970.54C3473 3377 blake street 4106. denver co 80205 t 303.308,1373 1 303.308.t 375 www.rowlandbroughton.com. otllce Orowlandbroughtun.eom z=, Cc, Oq ` Co Ot �a O� La et C m n 4 0 y W Q z Q W 0 Q 2 ? m N N N N N N a d Q a i N m y v LL h O m O W J y 2 n m v r |E !| ()).!, )§j!�§!r§ (j§A\Ll41 ) Lisa Markalunas 15 Williams Ranch Court Mailing: P.O. Box 8253 Aspen, CO 81612 (970)309-4598 Septernber.21,2009 City Council City of Aspen 130 S. Galena Street Aspen, CO 81611 RE: Wheeler Opera House Expansion Dear Councilmembers & Mayon Ireland I am writing to express my opposition to the expansion of the Wheeler Opera House as proposed.. I am concerned on many levels that this very unique and very special part of our community fabric will be compromised by the conceptual design you will be reviewing at your upcoming May 28" meeting. It is certainly not curious to me that long-time local residents did not voice their support of the expansion in the recent city sponsored survey. I believe that they recognize the impacts the proposed expansion will have on the special qualitiesthat the Wheeler brings to our community.. By its very nature, it provides an intimate theater and performance venue, which by its very nature, makes it a wonderful experience for performer and audience alike. I believe you must examine carefully the impacts of the expansion on the financial future of the Wheeler Opera House. Voters were well aware of their intent when they passed the Real Estate Transfer Tax to fund the Wheeler. It is ultimately the City Council's responsibility to honor the voter's trust and to insure that the funding for the Wheeler Opera House is sufficient to protect, operate and maintain this very special building. A depletion of the entire endowment for the proposed expansion is too big a risk to take in any economic climate. Significant square footage is being proposed for office space, much of which need not be located in prime locations within the addition. I object strongly to the scale and massing of the addition which matches the Wheeler in width and neatly in height. I object to any future proposals to expand the stageover the alley which would significantly compromise the north fagade of the building. Plans to expand the balcony seating are also ill advised and will compromise the historic nature of the interior theater space. The Wheeler needs to be honored for what it is; not remade into a performing arts center. if the community has a need for a performing arts center, we need to build one somewhere else,. The Wheeler Opera House is arguably one of the most historic and significant buildings in all of Aspen. I implore you to consider the impacts on this, our most treasured historic building, and to really consider whether this expansion is truly in the best interest of the Wheeler Opera House.. Those of us who are opposed to the expansion are not opposed to the Wheeler or the arts. We simply recognize what a very special place the Wheeler is and we ate deeply concerned about what could be destroyed. Sincerely, Lisa Markalunas �a ,i�aul�o�uMaS Questions on the Wheeler Opera House Expansion Submitted to Sara Adams, City of Aspen Community Development By Lisa Markalunas 7/6/09 Here are some questions I would like to see addressed by the applicant at the HPC hearings on the Wheeler as there was not opportunity for the public to ask questions and there was an attempt to limit public comment to three minutes: 1.) Are there truly, absolutely no incursions or impacts on any protected view planes? 2.) What is the net increase in lobby square footage? 3.) What is the percentage of new space devoted to: lobby, office space, housing, theater? 4.) What is the percentage of glass on the south fagade of the addition? 5.) What percentage of current users utilize the parking garage? 6.) Are there architectural examples of more historic additions? The first hearing produced a number of contemporary additions on historic buildings. Can they show us historic theaters with more architecturally similar additions? 7.) What, specifically, will the impacts be on the original, west, brick wall of the Wheeler? How many cuts will be made in various locations for access between the two buildings? How much brick will be removed? 8.) Can the architects speak to any contemplated future plans to expand the existing Wheeler stage by removing the north wall of the historic building? Are there plans to re -hang the existing balcony and replace seating? Page 1 of 1 14 Kathryn Koch From: Susan ONEAL [susaninaspen44@gmail.com] Sent: Tuesday, September 29, 2009 1:48 PM To: Kathryn Koch Cc: Mick Ireland; Steve Skadron; Dwayne Romero; Torre; Derek Johnson Subject: Tonight's public hearing comment on the Wheeler Importance: High Attachments: Wheeler Opera House deserves a chance _ AspenTimes.com.webarchive; ATT1712402.htm Dear Kathryn and City Council, Regrettably I'm not able to attend tonight's Council meeting, however I'd like to express the same thoughts expressed in the September 25th "Aspen Times" Editorial in which the Times encourages Council's conceptual approval for the Wheeler expansion, so the process can move forward with public involvement. I believe it's in the best interest of our community to provide increased performance space, additional administrative offices, a larger lobby/reception space, and another important reason for guests to visit Aspen, as requested by the Wheeler. Kathryn, please read my email endorsement (and the Editorial by the Aspen Times entitled "Wheeler Opera House deserves a chance") during tonight's Public Hearing session. Attached please find the Times Editorial which I would also like to have given to the City Council at tonight's meeting. Sincerely, Susan O'Neal 9/29/2009 Make Aspen Proud Dear Editor, Let there be no doubt —the Wheeler is the "people's place". Contrary to my usual stand, I wholeheartedly support the Wheeler expansion and recommend we give the Wheeler the support they request and deserve ---which includes sufficient height to accommodate a much needed apartment on the roof for visiting Wheeler performers. An exception for height at this location IS a public benefit that warrants a variance in height because Aspen cannot afford to provide visiting performers with Aspen's pricey luxury suites, especially during high season. Aspen will lose top performers unless sufficient housing is provided on site. Furthermore, at this location, height does NOT obstruct the view plane of people walking down the street. The music school has exclusive use of the 450 seat theater in the Wheeler during the summer, so no other summer performances are possible on site. A second theater will allow the Wheeler to create its own programs in the summer and double its offerings in the winter. A large indoor lobby makes more sense than an outdoor space which could only be used a small percentage of the year. The Wheeler lead architect firm specializes in designing additions to historic theaters, so let's let them do their job and let's support a plan that's 25 years in the making. The Wheeler endowment currently has $20 million, however another $5- $10M could be needed ---which is why it makes sense to PROCEED NOW before construction prices increase again. The Aspen Institute, the Aspen Writer's Foundation, Aspen Film, the Aspen Music Festival, and Theatre Aspen have met with the Wheeler Board for four years to discuss the best use of space for this expansion, so let's trust our local performing arts community. Construction prices are lower now so several million dollars could be saved by not delaying this project until construction prices go backup. Let's not sabotage ourselves wasting time preventing an expansion that provides necessary performance space to make Aspen proud. This is NOT the moment to be tight-fisted and short-sighted. Allow the Wheeler to expand as they have planned for 25 years because that expansion can and will benefit ALL of us. The Wheeler is the "people's place" so support its expansion and make Aspen proud. Thank you. Susan O'Neal Aspen �►���aw I missed your piece in the papers, but I want you to know my position as to the Wheeler expansion. I am absolutely in favor of the expansion of the Wheeler, however there are problems with what is being proposed. I was so excited over what it could be that I studied the plans before HPC, P&Z or Council saw them. HPC looked only at the historic elements, P&Z looked only at the impact of the expansion on the community. Council has just listened. Nobody is looking for the &RAND VISION of what it could be. As the program is flawed, then the results are flawed. The architects have been given a faulty program from which to work. The program and the solution to it are too: theater technical orientated - a compromise to include too many political nonessential functions - and it lacks a "&RAND VISION". Both the program and solution that follows should address the following: + The addition should pay homage to and enhance the historic Wheeler. + What is being presented is a structure that looks like a free standing structure that could be a retail outlet or office building. It does not say: • I am a grand public building that is a clearly articulated addition." • I am the new twenty- first century icon for Aspen. " • I am the civic gathering place. " " I am Aspen " Some of the reasons that prevent this from being the new icon are that the program should have stressed a vision for creating a grand lobby or place where people could gather before, after and during intermission; or for other events. There are ways to do this, especially if the program is rewritten to eliminate unneeded functions. Because there are too many non -essential functions programmed, the solution is compromised, awkward, and dysfunctional. To proceed, we should eliminate some of the non -essential elements such as: The Black Box This is a political decision to gain more support from the various groups that might want to use it. This function, although nice, could be located somewhere else. September 28, 2009 Dear City Council Members: My name is Kent Hudson Reed, director of the Hudson Reed Ensemble. Good evening ... I'm sorry I could not be here in person and I appreciate Junee reading into the record some of our organization's views concerning the Wheeler expansion. We believe the Wheeler proposal needs to consider some major compromises. It seems many residents, as well as older ones ... ones who are invested in this community and more likely to vote ... have two tangential concerns about the Wheeler expansion... one, size and two, money. Why couldn't this facility be expanded incrementally. Why do all these converging needs have to be realized right now ... In this economic environment... in this time of thrift. Why need it be all or nothing? Why not have phase one entail using the space behind the small pocket part, dig down one or two levels and have one story above . You wouldn't be able to see the ground floor from the street because of the park's trees in front of it. Such a concept would cost much less money -leaves a tidy sum in the RETT endowment, .saves the park and the architecture is nonintrusive. There is athird component... We realize there are several Aspen cultural icons who all have a claim and worthy needs for an expanded Wheeler. It is our feeling however, that an initial space needs foremost to consider the needs of performing residents who live in this community. ..Musicians, dancers, actors, poets and other community events and meetings. We feel strongly the space should be a community based resource that serves folks who live and work here. We bend over backwards to insure that our resident athletes have sufficient facilities. Why not resident performing artists ? Let the first priority of a modified Wheeler addition accommodate, nourish and sustain our resident performing community. Thank You. Sara Adams From: Sent: To: Subject: Attachments: Sara, `\ I received this letter Thu: Please include this in the Thank You. IJ LJ Erspamer [walkabout@sopris.net] Friday, July 03, 2009 1:49 PM Sara Adams FW: Letter to the Editor The People's Place.doc 2, 2009 for the next Wheeler expansion meeting From: Junee Kirk [mailto:junee.kirk@comcast.net] Sent: Thursday, July 02, 2009 9:16 PM To: Susan O'Neal Subject: Fw: Letter to the Editor Someone needs to respond to This letter. dwc YAVV� The Board to the Wheeler has NOTbeen 25 years in the making for a "new addition" because the open space was voted on in 1979 and just for that: to preserve the historic heritage of our Iconic Wheeler. THe WRETT tax was never intended for an addition, only an expansion of the existing building, which has already been done. We do not need to destroy the historic integrity of the Wheeler just to bring in outside performances. This theatre should accommodate the local performing groups for which it was intended. A below grade theatre is fine. But no new entrance, with a variance, to take away the required open space we fought so hard to protect in 1979 around the Wheeler. Gram Slaton is trying to change history! Most people on the board do not have an accurate historic perspective or understanding of why we have the WRETT tax to begin with!. Long time locals do. The purpose of the WRETT should NOT be reinterpreted. We do not need offices( two story of offices) for a growing staff when it can occupy the existing space in the Wheeler;' We desperately need parking, and no variance should be allowed for this either. The integrity of the Wheeler as an historic edifice its shape, its view from Main Street, is identified with the soul of Aspen. If you destory this, you might as well forget about Aspen maintaining its character as a mountain town. The infill codes of 2007 have the plan to build an inner city look, like Boulder and NY city buildings. This 4 story addition is just another foot in the door! We need to protect whatever open space there is, surrounding these Iconic buildings! THis is part of Aspen's history which people are trying to destroy overnight yet has been part and parcel of what people are drawn to Aspen and makes up its character. Junee, please consider my Letter to the Editor. Thank you. Best wishes, Susan Susan C ONeal 205 E Durant Ave. #1-1 Aspen, CO 81611 (970)544-0966 The mind works best when it's open. >> Junee, please consider my Letter to the Editor. Thank you. >> Best wishes, >> Susan >> Susan C ONeal >> 205 E Durant Ave. #1-I >> Aspen, CO 81611 »`(970) 544-0966 >> The mind works best when it's open. 2 MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Chris Bendon, Community Development Director JW RE: Lift One Conceptual PUD/Timeshare Review — Public Hearing DATE: September 28, 2009 SUMMARY: Tonight's hearing is a continuation from September 22"d. The last hearing in Council Chambers was on September 14d'. That hearing was continued to the 22"d for a site visit and then continued to tonight. On the 14d', City Council reviewed a redesigned project incorporating a ski lift corridor through the project site. This new plan includes a platter lift, amended rights -of -way, relocated historic buildings, and inclusion of whole ownership residential units. The applicant reviewed the program for the five buildings and conceptual heights and massing throughout the project. The site visit included a review of the proposed lift and building locations as well as selected heights through the project in the context of existing neighborhood development. Tonight's meeting will focus on the proposed architecture for the project. Design direction has been shaped by building uses and program considerations, the creation of public spaces, and energy efficiency and green technology measures. DIRECTION SOUGHT: Tonight's presentation will conclude the presentation of physical changes to the project. Further meetings will focus on "peripheral" items such as pedestrian movement, environmental commitments, etc. and the details of a draft resolution. Staff and the applicant would like to receive comments and direction on the proposed site plan, architecture, and massing of the project. This is not the last time these issues can be discussed, but if changes are necessary the designers would like to hear those requests so they can respond appropriately. At the conclusion of tonight's meeting, staff wi"sk Council to continue the hearing to Tuesdav, October 131h, for a continued public hearing. STAFF RECOMMENDATION: Staff recommends City Council receive the presentation on the amended massing and architecture, provide feedback on the physical changes to the project that were made, and continue the hearing to Tuesdav October 131h. Page 1 of 2 BACKGROUND: The Lift One area has had multiple development applications proceeding through development review during the past few years. The owners of the Lodge at Aspen Mountain project, the Lift One Lodge project, the Aspen Skiing Company, and the City of Aspen jointly initiated a master planning process in early 2008 — the Lift One Neighborhood Master Plan COWOP. That process incorporated a citizen task force and developed a master plan for the entire neighborhood. The master plan was not adopted and that process has been terminated. Prior to entering into the master planning process, the Lift One Lodge project had received positive recommendations for the Planning and Zoning Commission and the Historic Preservation Commission for their Conceptual PUD application. The Conceptual application was not forwarded to City Council, but rather tolled for the term of the master planning effort. Resolution No. 13, Series of 2008, maintained the Lift One Lodge application as "active" and preserved the land owner's ability to renew the review if the master planning effort terminated. The 2006 PUD application did not incorporate the newer ideas of the master planning exercise (as it was prepared prior to that effort). Some of the ideas were for items off this property and may not be accommodated on the smaller land area. But, some of the ideas are still valid and worth pursuing. The applicant has been pursuing amendments to the application to more closely reflect the ideas of the master planning effort. CONCEPTUAL REVIEW: Conceptual Review is an opportunity to determine if a project meets the basic parameters expected of new development. It is also an opportunity to determine what changes are necessary to the project and the submission requirements for final review. Although conceptual approval does not guarantee a final approval, there is a tacit expectation that the fundamental aspects of a proposal are acceptable and the remaining reviews are for detailed issues. CITY MANAGER COMMENTS: RECOMMENDED MOTION: "I move to continue Resolution No. 52, Series of 2009, to Tuesday October 13." PREVIOUS ATTACHMENTS: Exhibit A: July 10, 2009, memo from Bob Daniel (provided with July 27, 2009 packet) Exhibit B: Application (provided with July 27, 2009 packet) Exhibit C: July 30, 2009, memo from Bob Daniel with site plan (provided with August 10, 2009 packet) Exhibit D: September 4, 2009, memo from Bob Daniel (provided with Sept. 14, 2009, packet) CURRENT ATTACHMENTS: Exhibit E: September 21, 2009, memo from Bob Daniel Page 2 of 2 MEMORANDUM �f TO: Chris Bendon, Community Development Director--- Mayor Ireland and Aspen City Council Members FROM: Bob Daniel, Roaring Fork Lodging Company RE: September 28 Aspen City Council Meeting — Lift One Lodge DATE: September 21, 2009 Background At the July 27 Aspen City Council meeting, we presented the Lift One Lodge Conceptual PUD plan and provided a brief overview of the differences in outcomes generated by the COWOP citizen planning process for the east side of South Aspen Street. After reviewing master planning goals from our neighborhood -based work and the larger COWOP effort, City Council directed our team to work toward updating the Lift One Lodge PUD application in order to incorporate aspects of the COWOP plan. At the August 1 I Aspen City Council meeting, we discussed the thinking behind the COWOP plan and the importance of the green corridor and lift from Willoughby Park to the ski area in that plan. We asked the Council to identify any fatal flaws in those trade- offs prior to revising our plan for detailed review. At the September 14 Aspen City Council meeting, we presented the amended Lift One Lodge proposal. We explained that would use that meeting and the next two meetings primarily to help everyone envision the mass and scale of the project, since that seems to be a major topic of interest. At that meeting we presented the uses proposed in each of the five buildings in the master plan and the number of floors and general height information using absolute heights. The COWOP had requested that we use the absolute rather than code heights and we have carried that concept forward in the context of this PUD review. This approach results in higher numbers but reflects the general perceptions of height that we have heard in our community conversations. We also explained access to and from the site, parking for public and lodge guests, and the use plan and lock -off design than has been developed in order to optimize occupancy. At the September 22 Aspen City Council Meeting, we will take a walking tour to the site. Along the way we will review a variety of well know buildings and present their height from adjacent sidewalks using absolute heights. At the site, we will tour the green corridor through the site, examine the footprint of the proposed buildings, and look at representative heights on the site. Lift One Lodge Memo to Aspen City Council September 28, 2009 13 At the October Z meeting we will address: ° Employee generation and affordable housing; • Traffic/pedestrian improvements/transit; • Environmental commitments; • Historic assets; and • Skiing/racing At the October 26 meeting we will address: • Dimensional standards, PUD review standards; • Timeshare review standards, zoning; ° Financial assurances; and • Additional Council issues raised prior to that meeting At Council's August I I meeting, Mayor Ireland characterized the previous architecture as "neo-Beowulflan". The September 28 meeting will focus on architecture. While not commonly a significant aspect of City Council review, we welcome the opportunity to explain the architectural design process utilized to date, to share the latest design images, and to hear council comments related to advancing project architecture before final review. Lift One Lodge Architecture In addition to regulatory requirements and City plans, there are several considerations that shape architectural choices in the master plan area. Among the considerations for the Lift One Lodge buildings are: The Site Uses and Program Sustainability Public Space and Accessibility The Site has a number of unique characteristics that inform the design process. The planning area has grade that is greater than 10% throughout the lodging area. This grade is characteristic of the base of the mountain and that presents both architectural opportunities and challenges. The site is also linear and rectangular rather than square, with a mix of public and private lands that shape the footprint of any buildings on the site. When combined, these considerations directed the team toward buildings that "step up" the base of the mountain and allow for variation of roof forms, uses, and the material palette in a manner that allows differentiation among the buildings while still having common elements that knit the fabric of the master plan together. The historic assets and recreation patterns throughout the site also play a critical role in developing the site. As the site plan has evolved, the recreation patterns and historic assets have come to be the driving forces in creating the footprint for the buildings. The Lift One Lodge Memo to Aspen City Council September 28, 2009 architecture first reacts to those needs and as the building design evolves, it can respond to and complement those considerations. Our presentation will display the evolution of the shape and footprint of the lodge buildings in response to these characteristics. Adjacent buildings have also shaped the architectural choices. Whether it is an expanded setback to accommodate ski access to a neighbor, removing a level of building to reduce impacts to views from adjacent properties, or providing a new lift and dedicated ski access to bring ski -in, ski -out convenience to properties on the lower end of the site, the adjoining structures and people in them have been considered. The uses and program for the lodge also affect architectural choices. A successful lodge in this location will need to embrace the public activity areas and uses around the building while providing members and guests with opportunities for family time, privacy, and romance. The buildings will need to balance opportunities for all of those uses. The lodge will need to advance vitality at the base of the mountain and create a gathering place or places for area property owners, valley residents, guests, and visitors. Public facilities, such as restaurant, apras ski, ticketing, and lockers will need to be situated in a manner that identifies the facility as an entrance to Aspen Mountain In addition, the lodge program will need to serve the needs of fractional owners, club members, guests, and the public. Aspects of the lodge will need to serve those functions and the layout will need to embrace spaces that are for lodge guests only. Our project teams experience with the Roaring Fork Club suggests that primary used for owners and members will focus on family gatherings, rejuvenation, recreation and romantic get- aways. The lodging product will need to be flexible in order to optimize occupancy while still creating a high quality product that will serve the families who will invest in ownership at the lodge. The City's green initiatives and the Lift One Lodge partners desire to build and operate the lodge are aligned in a desire to minimize long term operating costs and reduce environmental impacts. In 2006, the project team brought together representatives of Resource Engineering Group and the Rocky Mountain Institute to examine energy related design issues at the site. The conclusion was that the most effective approach involved reducing energy demand and employing carefully design mechanical systems operated efficiently, utilizing waste heat, and constructing a well -field tied to a ground source heat pump system that could meet air heating and cooling loads. The other design influence gathered from the charette was to utilize "green roofs" on portions of the lodge buildings. Green roofs offer potential stormwater management, energy reduction benefits, and reduction of the "urban heat island" effect while offering an interesting visual on -mountain element to the building from the neighbor and skier/hiker/biker perspective. Green roofs have also been touted for sound reduction and reducing dust and particulates in the air. Lift One Lodge Memo to Aspen City Council September 28, 2009 - Embracing energy targets early in the design process informs architectural choices during project design, such as glazing, height between floors, thickness of walls, and materials. The design must also accommodate advanced mechanical systems and anticipate the operating needs of those systems. As explained in previous meetings and above, public space and accessibility were central to the COWOP contributions to site planning and architecture. All of the above combine to create a building footprint and form. Relatively narrow linear buildings, clustered around a green space/ski corridor, flat green roofs in many locations, separated buildings that allow more architectural variation than a single building, that have a carbon footprint that is significantly below comparable buildings. On the inside, there is a mix of active public spaces that reflect the mountainside location, skier services and quiet family and romantic spaces for owners, members, and guests. The lobby, restaurant, apres ski deck, and Skico skier services feel public and active while the lodging and guest amenities feel more private. Lodging rooms are to be designed for flexibility in order to generate high occupancy. While most of us think of architecture as the palette of materials visible from the outside, the items above are central to project design. The architect works with these parameters to develop an aesthetic for the building that is reflected in form and materials. The most common comments from COWOP members, neighbors, and members of the public regarding architecture has been that the materials, vertical stone elements, and color scheme seemed "heavy" or "dark". The architecture has been revised, particularly on the upper lodge building to lighten up the buildings. The Lower Lodge building expresses a more residential feel along S. Aspen St. as a nod to the existing uses in the neighborhood. We use pitched roofs and some limited access points to create a "walk-up" feel to the street and to offer interesting features at the pedestrian level. The dominant palette includes cedar siding, timber structural elements, and stone surfaces grounding the building to the earth. The East Lodge building has significant flat green roofing, which created opportunities to reduce visual impacts to neighbors. The building has sections with double loaded and single loaded corridors to provide variety in the form of the building as seen from the ski corridor. The building is most narrow at the top of the building, widening to a double loaded corridor lower on the property. Both the Lower and East Lodge buildings have ski -in, ski -out employee units at the lower end. While the dominant palette reflects the Lower Lodge Building, the flat green roofs with varied heights and widths provide differentiation. The Upper Lodge Building exterior look has changed the most since the COWOP plan was developed. A lighter look has been achieved through increased glazing and lighter materials. The entry has been extended over the expanded cul-de-sac in order to provide Lift One Lodge Memo to Aspen City Council September 28, 2009 additional pedestrian scale features along the Skico ticketing, lobby entry, and public restaurant. This technique was successfully used at the Little Nell Hotel. A final architectural comment of note has been a request to create more of an "Alpine" feel to the Upper Lodge Building. We will display a version of the Upper Lodge Building that represents our best understanding of this feel. Council Direction Desired The architectural character of the lodge buildings was raised as an item for discussion by the Mayor during a previous meeting and our desire was to share this information in the context of our discussion regarding the acceptability of the character of the lodge. The City Code provides limited direction for Council consideration of architecture and the Council has historically limited its review of such matters. At the end of the day, our team is responsible for the architecture and character of the Lift One Lodge; however, we welcome a discussion with Council in working toward a master plan that addressed all of our needs. Our desire for the meeting is to confirm whether the conceptual architecture of the Lower Lodge Building and East Lodge Building, which have generated minimal comments, are acceptable. We would also appreciate Council comments regarding changes proposed in the Upper Lodge Building. Our desire would be for the Council to tell us what, if any, additional architectural information would be required for completion of Conceptual PUD Review. Lift One Lodge Memo to Aspen City Council September 28, 2009