HomeMy WebLinkAboutagenda.council.regular.20091013CITY COUNCIL AGENDA
October 13, 2009
5:00 P.M.
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
a) Resolution #80, 2009 — October 24th — Day of Climate Action
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 #81, 2009 - Contract Caterpillar Motor Grader
b) Resolution #82, 2009 — Amendments to Burlingame Covenants
c) Resolution #83, 2009 — IGA City/County Community Development Department
d) Resolution #77, 2009 - Contract AABC City Affordable Housing Part 2
e) Resolution #84, 2009 - Aspen Walk Extension of Conceptual Approval
f) Minutes — September 28, 2009
VII. First Reading of Ordinances
a) Ordinance #22, 2009 — Opt In to Local Energy Improvement District P.H. 10/26
Vill. Public Hearings
a) Resolution #85, 2009 — Temporary Use Aspen Art Museum Installation
b) Resolution #86, 2009 — Temporary Use Dark Horse Alley Coffee Cart continue to
10/26
c) Resolution #52, 2009 — Conceptual PUD Lift One Lodge
IX. Action Items
X. Executive Session
Next Regular Meeting October 26, 2009
COUNCIL'S ADOPTED GUIDELINES
✓ 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
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
TO:
FROM:
THRU:
DATE OF MEMO:
MEETING DATE:
RE:
MEMORANDUM
Mayor and City Council
Kim Peterson, Global Warming Project Manager
Phil Overeynder, Director of Public Works and Environmental
Initiatives
October 5, 2009
October 13, 2009
Resolution in support of and declaring October 24, 2009 as
"International Day of Climate Action in Aspen, Colorado"
REQUEST OF COUNCIL: City Council is asked to approve the attached resolution in support
of and declaring October 24, 2009 as "International Day of Climate Action in Aspen, Colorado".
BACKGROUND: International Day of Climate Action is October 24, 2009. This day has been
declared by the non-profit group 350.org which has launched an international campaign to build
a world-wide movement around solutions to the climate crisis. 1,742 actions in 140 countries
will take place on that day. The results and photos will be shared with international climate
negotiators in Copenhagen, Denmark when they assemble to negotiate the next round of global
agreements to reduce greenhouse gas emissions.
DISCUSSION: The scientific community has called for a return to 350 parts per million of
carbon dioxide in the atmosphere. Currently we are at 385.92 parts per million and evidence of a
rapidly changing climate can already be seen around the world. Here in Aspen, we've lost 28
days of winter in the last 25 years and have warmed 3 degrees. If carbon emissions continue
unabated, the world risks facing a climate that is very different than the one which has supported
humanity thus far.
The Canary Initiative Staff, along with CORE, Aspen Skiing Company and other partners, is
planning an International Day of Climate Action event in Aspen on October 24, 2009. At 3
p.m., the public is invited to gather in Gondola Plaza with their snow gear. The group will stand
on Aspen Mountain spelling out "Save Snow" with their bodies. John Catto, a National
Geographic photographer, will take an aerial.photo to send to the climate negotiators in
Copenhagen. There will also be education and festivities as part of this event.
Page I of 2
FINANCIALBUDGET IMPACTS: There will be no financial or budget impacts to the city as
a direct result of this program. The Aspen Skiing Company is sponsoring the refreshments.
This is a grassroots effort with no city dollars spent on advertising or other costs.
ENVIRONMENTAL IMPACTS: The intended environmental impacts of this event are to
encourage international climate negotiators to take a strong stance on reducing worldwide
greenhouse gas emissions when they meet in Copenhagen in December 2009. Emissions
reductions on a global scale would benefit Aspen by slowing global climate change.
RECOMMENDED ACTION: Staff recommends that Council approve the resolution in
support of and declaring October 24, 2009 as "International Day of Climate Action in Aspen,
Colorado' and joins the event on Aspen Mountain.
ALTERNATIVES: Council can remain silent on this issue.
PROPOSED MOTION: "I move to approve a Resolution &'—, in support and declaring
October 24, 2009 as "International Day of Climate Action in Aspen, Colorado'.
CITY MANAGER COMMENTS:
Page 2 of 2
RESOLUTION #eO
(Series of 2009)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, IN
SUPPORT OF AND DECLARING OCTOBER 24, 2009 AS "INTERNATIONAL DAY OF
CLIMATE ACTION IN ASPEN, COLORADO".
WHEREAS, James Hansen of NASA and the scientific community have reached
a consensus that carbon dioxide in the atmosphere should not exceed 350 parts per
million in order to avoid irreversible global climate change ; and
WHEREAS, when carbon dioxide exceeds 350 parts per million in the
atmosphere, conditions exist for a rapidly changing climate very different from the one in
which humanity has existed; and
WHEREAS, the current level carbon dioxide in the atmosphere is 385.92 parts
per million; and
WHEREAS, international climate negotiations will commence in December 2009
in Copenhagen, Denmark to get the world's leading economies to agree on emissions
reductions targets; and
WHEREAS, the U.S. House of Representatives has passed cap and trade
legislation and similar legislation has been introduced in the U.S. Senate; and
WHEREAS, beginning January 1, 2010, the U.S. Environmental Protection
Agency will require all major emitters to report their greenhouse gas emissions; and
WHEREAS, 350.org is an international campaign dedicated to building a
movement to unite the world around solutions to the climate crises; and
WHEREAS, the City of Aspen in partnership with CORE, Aspen Skiing Company
and others is organizing an event in Aspen to add our voice to the other 1,742 actions in
140 countries calling for immediate action on the climate crisis,
NOW, THEREFORE, BE IT RESOLVED THAT THE ASPEN CITY COUNCIL supports
and declares October 24, 2009 as "International Day of Climate Action in Aspen,
Colorado" and encourages all residents and visitors to participate in climate action
events and activities.
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 October 13, 2009.
Kathryn S. Koch, City Clerk
TO: Mayor and City Council
FROM: Jerry Nye, Superintendent of Streets
THRU: Randy Ready, Asst. City Manager
DATE: October 12, 2009
RE: Contract Approval for a Caterpillar Motor Grader
REQUEST OF COUNCIL: Staff recommends approval of the contract with Wagner
Equipment in the amount of $146,769 to replace a Caterpillar Motor Grader Model 140M for the
Streets Department.
PREVIOUS COUNCIL ACTION: The motor grader is scheduled for replacement this year in
the 2009 Asset Management Plan which was approved by Council as part of the 2009 Budget.
DISCUSSION: The Streets Department fleet of heavy equipment is primarily made up of
Caterpillar brand equipment. We have operated and maintained Caterpillar equipment for the
past 12 years. Section 4.12.050 (2) of the Procurement Code allows for sole sourcing for such
items as equipment, cars, and trucks, to provide uniform and economical repair and maintenance.
Wagner Equipment, the Caterpillar dealer for Colorado, offers a 7-year trade-in plan on its heavy
equipment. When new equipment is purchased, Wagner guarantees the trade-in value for seven
years. The grader is now seven years old and needs to be traded to obtain the guaranteed trade in
price towards a new grader.
FINANCIALBUDGET IMPACTS: The cost of new the motor grader is $252,769.00. Wagner
Equipment will purchase the used motor grade for $106,000.00 which lowers the purchase price
on the new grader to $146,769. Wagner Equipment guarantees to buy the new grader back for
$140,000 in seven years.
ENVIRONMENTAL IMPACTS: This Motor Grader has a new ACERT Technology engine
that improves fuel economy and lowers emissions. It meets or exceeds all US EPA Tier 3
emission standards.
RECOMMENDED ACTION: Staff recommends the approval of the with Wagner Equipment
contract to purchase a Caterpillar motor grader for $146,769.
Page l of 2
ALTERNATIVES:
PROPOSED MOTION:
"I move to approve Resolution # St of 2009
On the consent calendar of Tuesday, October 13, 2009
CITY MANAGER COMMENTS:
ATTACHMENTS:
Page 2 of 2
RESOLUTION NO. St
Series of 2009
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT
BETWEEN THE CITY OF ASPEN, COLORADO, AND Wajzner Equipment Company, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT(S) ON BEHALF
OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a CONTRACT
between the City of Aspen, Colorado and Wagner Equipment Company a copy of which
contract is annexed hereto and made a part thereof.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves that CONTRACT between the
City of Aspen, Colorado, and Wagner Equipment Company. 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: 2009
Mick 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 2009
Kathryn S. Koch, City Clerk
SUPPLY PROCUREMENT AGREEMENT
CITY OF ASPEN BID NO. 2009 — 3FM
THIS AGREEMENT made and entered into, this 1st day in September of 2009, by and
between the City of Aspen, Colorado, hereinafter referred to as the "City" and
Wagner Equipment Company . hereinafter referred to as the "Vendor."
WITNESSETH, that whereas the City wishes to purchase.
One (1) New Caterpillar model 140M AWD Motor Grader Hereinafter called the UNIT(S), 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 Documents and more specifically in Vendor's Bid for the sum of _
One Hundred Forty Six Thousand Seven Hundred Sixty Nine and no cents dollars
($ 146 769.00 ).
2. Delivery. (FOB 1080 POWER PLANT RD. 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 Documents are hereby made a part of this
Agreement as if fully set out at length herein.
4. Warranties. A full description of all warranties associated with this purchase shall
accompany this contract document.
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 rights 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.
7-PURCH.DOC
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 this 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 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 advice, investigation, auditing, or in any
other advisory capacity in any proceeding or application, request for ruling, determination, claim or
controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or
proposal therefor.
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.
7-PURCH.DOC
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
sub -contractor 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 cancelled 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 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 non-
discrimination 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.
7-PURCH.DOC
0
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.
ATTEST:
City Clerk
FOR THE CITY OF ASPEN:
By:
City Manager
VENDOR: wQ
By: . / 77/
Title. Cew (Pl t"Ci"
7—PURCH.DOC
Equipment Quotation
for
City of Aspen
130 S. Galena
Aspen, CO 81611-1975
1 -New Caterpillar 140M AWD Motor Grader
equipped with the following equipment:
Operator Environment
Accelerator -decelerator
Coat hook
Control console, adjustable
EMS operator warning system
Gauges inside the cab (includes fuel, articulation,
engine coolant temp
Joystick hydraulic controls (right/left blade lift
with float position, blade sideshift and tip,
circle drive, centershift, front wheel lean,
articulation, and two wing controls)
Hour meter
Mirror, inside rearview, wide angle
Joystick hydraulic power steering
ROPS cab, sound suppressed 80 dB(A), low
profile
Contour seat, suspension, cloth -covered,
adjustable
Seat belt, retractable 3"
Storage area for cooler/lunchbox
Cab heater with pressurizer, w/ A/C
Rear window defroster fans
Radio ready, entertainment. Provides 5 amp,
24V to 12V converter, two mounted
speakers, mounted antenna and cable.
AM/FM stereo cassette
Communication converter, Converter group for
two-way FM communications radio.
Provides 25 amp, 24V to 12V converter
8/12/2009
and wiring for two-way communications
radio. Communications radio not included.
Outside mounted mirrors
Intermittent front windshield washer and wiper
Rear window washer and wiper
Speedometer/Tachometer
Rear sunshade
Electrical
Back-up alarm
Alternator, 150 ampere, sealed
Batteries, 1400 CCA, 200Amp hrs
Electrical system, 24 volt
Stop and tail lights
Starting motor
Lights, cab and bar mounted, two hi and two
low beam, cab mounted halogen
headlights. Turn signal fights mounted
front bar and radiator grill. Two bar -
mounted halogen work lights.
Work lights, Two front -facing halogen work
lights mounted on operator's platform.
Also includes two rear -facing halogen work
lights mounted on the engine side panels.
Snow wing light
Amber strobe on the left side of cab
Blue strobe on the right side of cab
Powertrain
Other Equipment
Air cleaner, dry type radial seal with service
Rear bumper with hitch
indicator and automatic dust ejector
Cap locks for hydraulic tank, radiator access cover,
Blower fan
and fuel tank
Brakes, oil disc, four-wheel hydraulic actuated
Cutting edges, 8" x 3/4" (152mm x 16mm)
Differential, lock -unlock
curved DH-2 steel, 5/8" mounting bolts
Engine, C7 w/ ACERT diesel triple variable
Locking engine compartment door
horsepower (VHP)
Drawbar, 6 shoe with replaceable bronze -alloy
Muffler, under hood
wear strips
Parking brake, multi -disc, sealed and oil cooled
Endbits, 5/8" (16mm) DH-2 steel, 3/4" mounting
Prescreener
bolts
Fuel priming pump
Frame, articulated with safety lock
Tandem drive
Fuel tank, 110 gallon (341 L)
Autoshift transmission, 8 speed forward and 6
Electric horn
speed reverse power shift, direct drive with
Moldboard, 14' x 27" x 1" blade with hydraulic
electronic shift control and overspeed
sideshift and tip
protection
Tires, 14.00R24 x Snow Plus Michelin
Engine coolant heater, (and outside engine
Tool box
compartment)
Blade lift accumulators
Ether starting aid
Circle drive slip clutch
Tire chain protection. Brake line covers, Protects
All Wheel Drive System
against tire chain damage.
Hydraulic front wheel drive system with
Balderson 12' direct hydraulic snow wing with
electronic control system; manual and
manual rear brace height adjustment
automatic operating mode
Front mounted push - block
Motors, front wheel dual displacement
Pump, AWD system mounted on transmission
FOB Aspen. CO Purchase Price: $ 242,589.00
Less 143H trade: -106, 000.00
Net Purchase Price: $ 136,589.00
Warranties:
Standard Warranty is one year total machine with travel time for six months.
Optional Extended Warranties:
-5 year/5000 hour Premier Governmental Warranty- Add 10,180.00
-5 year/5000 hour Powertrain and Hydraulic Warranty- Add 0.00
-5 year/5000 hour Powertrain Warranty Add $ 4,290.00
Guaranteed Repurchase:
Buy-back - 7years, 5,000 hours $ 140,000.00
Thanks for your interest. If you have any questions, please don't hesitate giving me a call.
Prepare -- —
" San y" Lowell
Sales Representative,
Wagner Equipment Co.
0
THE CITY OF ASPEN
MEMORANDUM v ` b
TO: Mayor and City Council
FROM: R. Barry Crook, Assistant City Manager �.
DATE: October 5, 2009
MEETING DATE: October 13, 2009
RE: Accepting an Amendment to the Declarations of
Covenants, Conditions and Restrictions of the
Burlingame Ranch Affordable Housing Subdivision
Backeround:
We have been in negotiation with the Burlingame Condominium I HOA board since January
over a proposal to increase the unit count. At a meeting of the homeowner's association on
September 30, 2009, the Board of Directors of both the Condo 1 Association and the Master
Condo Association recommended the adoption of an amendment to Article XII, Section 6(d) of
the Declarations regarding the vote required to increase units and voting limitations set forth in
Article II, Section 2.
Council Action Requested:
The Declarations of Covenants, Conditions and Restrictions of the Burlingame Ranch Affordable
Housing Subdivision were part of the governing documents approved by the City Council in
creating Burlingame Ranch. Under Article XII, Section 6(d), any amendments to the Declarations
must be approved by the City of Aspen and recorded within the real property records of Pitkin
County.
Discussion:
The first step in getting homeowner approval of the agreement to raise the total unit count to 258
units (13 of which would be single family homes), is to amend two sections of the Declarations.
One section covers what we have referred to as `one unit/one vote." Currently the Declarations
provide that single family homeowners are allocated 51% of the total vote, which weights their
votes greater than a multi -family homeowner. Another provision of the Declarations provides that
any vote increasing the unit count must be unanimous. The homeowners voted on September 30,
2009 on the following:
Article XII, Section 6(d), is hereby amended by adding the following sentence at the
end of the section:
1
"Notwithstanding the limitations set forth herein, on or before November
30, 2009, the provision of the Declaration that defines the number of Units
that may be created, Article I, Section 32, may be amended to increase the
number of units that may be created by a vote or consent of sixty-seven
percent (67%) of the Owners, not including the Declarant. Thereafter, the
consent required for such amendment shall be unanimous. In addition, any
)�gejon the increase in the number of units prior to November 30, 2009,
shall not be subject to the limitation of Article II, Section 2, which restricts
the multi -family units to forty-nine percent (49%) of any vote of the
association."
Pursuant to such vote, ninety-two (92) unit owners voted in favor of the amendment, one (1) unit
owner opposed the amendment. Of those votes, eighty (80) of the multi -family units casts votes
in favor of the amendment with none (0) opposed and twelve (12) of the single family units casts
votes in favor of the amendment, with one (1) opposed. Pursuant to Article XII, Section 6(a) and
Article II, Section 2, of the Declarations and state statute, this amendment passed.
In accordance with Article XII, Section 6(a) of the Declarations, such amendment must be
approved by the City of Aspen; and must be recorded within the real property records of the
County of Pitkin, State of Colorado.
Council should approve the attached Resolution in order to follow the procedures for recording
the vote and amending the Declarations, so that the vote on October 281h may be recorded in
accordance with the changes in the Declarations. This second step of approval — a vote on the
actual amendment to the declarations that governs total unit count — will come at a homeowner
meeting scheduled for October 281h. The Board currently holds proxy statements approving that
amendment by 93.4%.
Recommended Action:
Staff recommends approval of the Resolution so we can file it with Pitkin County and the vote on
October 28`h can be "counted" under the new provisions.
Pronosed Motion:
"I move to approve Resolution gZ,
approving the amendments to the Declarations of
Covenants, Conditions and Restriction of the Burlingame Ranch Affordable Housing
Subdivision Article XII, Section 6(d); and direct staff to file the appropriate documents with
Pitkin County."
City Manager Comments:
PA
RESOLUTION NO. 0a--
(Series of 2009)
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, ACCEPTING AN
AMENDMENT TO THE DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS OF BURLINGAME RANCH AFFORDABLE
HOUSING SUBDIVISION
WHEREAS, at a duly called meeting of the homeowners' association convened on
September 30, 2009, at which a quorum was present, the Board of Directors
recommended the adoption of an amendment to the Declaration Of Covenants,
Conditions and Restrictions of Burlingame Ranch Affordable Housing
Subdivision (hereinafter "Declarations"); and
WHEREAS, the amendment proposed to amend Article XII, Section 6(d) for a
specific limited time with regard to the vote required to increase units and with
regard to the voting limitations set forth within Article II, Section 2, of the
Declarations; and
WHEREAS, the proposed amendment was presented to the Homeowners for
vote pursuant to Article XII, Section 6(a); and
WHEREAS, pursuant to such vote, ninety-two (92) unit owners voted in favor of
the amendment, one (1) unit owner opposed the amendment. Of those votes,
eighty (80) of the multi -family units casts votes in favor of the amendment with
none (0) opposed and twelve (12) of the single family units casts votes in favor of
the amendment, with one (1) opposed. Pursuant to Article XII, Section 6(a) and
Article II, Section 2, of the Declarations and state statute, this amendment passed;
and
WHEREAS, pursuant to Article XII, Section 6(a) of the Declarations, such
amendment must be approved by the City of Aspen; and
WHEREAS, pursuant to Article XII, Section 6(c) of the Declarations, such
amendment must be recorded within the real property records of the County of
Pitkin, State of Colorado. A copy of the amendment for recording is attached
hereto as Exhibit "A".
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby accepts and approves the
amendment to Article XII, Section 6(d), of the Declaration of Covenants,
Conditions and Restrictions of Burlingame Ranch Affordable Housing
Subdivision set forth below, as approved by the unit owners of Burlingame Ranch
Affordable Housing Subdivision at a duly called meeting of the unit owners held
on September 30, 2009:
Article XII, Section 6(d), is hereby amended by adding the
following sentence at the end of the section:
Notwithstanding the limitations set forth herein, on or
before November 30, 2009, the provision of the Declaration
that defines the number of Units that may be created,
Article I, Section 32, may be amended to increase the
number of units that may be created by a vote or consent of
sixty-seven percent (67%) of the Owners, not including the
Declarant. Thereafter, the consent required for such
amendment shall be unanimous. In addition, any vote on
the increase in the number of units prior to November 30,
2009, shall not be subject to the limitation of Article II,
Section 2, which restricts the multi -family units to forty-
nine percent (49%) of any vote of the association.
Dated: October 13, 2009.
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
2009.
Kathryn S. Koch, City Clerk
Vic,
lu u 1 :: 11 ul
TO: Mayor Ireland and Aspen City Council
FROM: Chris Bendon, Community Development Director
RE: City / County CqMmunity Development Departments IGA
Resolution No. , Series 2009.
DATE: October 13, 2009
SUMMARY:
The City and County Community Development Departments have operated under an
Intergovernmental Agreement since 2002. Prior to 2002, the Building Department was a joint
department. The agreement outlines 1) reciprocal aid for building services — plans review,
inspections, and administration; 2) management of shared office space and equipment; and, 3)
processes for reconciling shared expenses.
Proposed is an update to the 2002 IGA. Staffs from the City and County drafted the agreement
and both support the proposed changes. City and County Managers and Attorneys have
reviewed the changes. The Pitkin County Board has adopted the IGA and City staff is
requesting the City Council also adopt.
BACKGROUND:
Prior to 2002, the City and County shared one Building Department. The Chief Building
Official reported to both Community Development Directors and served both the City Council
and the BOCC. Starting around 2000, both ComDev Departments re -structured processes, work
functions, office layout, etc. and made wholesale changes to the day-to-day operations of the
departments. The biggest change was splitting the building division into two departments. This
change went through the City and County Managers and elected officials and was implemented
mid-2002.
An IGA was developed to clarify how reciprocal aid would be provided and reconciled. The
agreement has worked well but has been amended on an ad -hoc basis as needs have changed.
Staff has focused on updating the agreement to reflect actual practice and simplifying the
financial reconciliation process.
FINANCIAL IMPACTS:
Staff does not expect a discernable financial impact from this restated agreement. The City and
County Community Development Departments have shared certain office expenses and costs of
an Electrical Inspector in the past in the same format as proposed.
The agreement does include additional language regarding director approval for certain items,
the most significant of which is the travel/training budget for the Electrical Inspector. The
Page 1 of 2
agreement does specify a reimbursement cost structure for mutual aid. Costs for these services
are slightly higher than using a jurisdiction's own staff but still less than using contract services.
STAFF RECOMMENDATION:
Staff recommends City Council approve the proposed IGA by adopting Resolution No.
Series of 2009.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: 9
"I move to approve Resolution No. O D , Series of 2009."
ATTACHMENTS:
Proposed Resolution with attached IGA
Page 2 of 2
RESOLUTION'33
(Series of 2009)
A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT
BETWEEN THE CITY OF ASPEN, COLORADO, AND THE BOARD OF
COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO,
REGARDING BUILDING SERVICES OF THE CITY AND COUNTY
COMMUNITY DEVELOPMENT DEPARTMENTS.
WHEREAS, there has been submitted to the City Council an Intergovernmental
Agreement between the City of Aspen and the Board of County Commissioners of Pitkin
County regarding building services of the City and County Community Development
Departments.
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 the Intergovernmental
Agreement with the Pitkin County Board of County Commissioners regarding building
services of the City and County Community Development Departments, a copy of which
is attached hereto, and does hereby authorize the Mayor and the City Manager of the City
of Aspen to execute said agreement 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 October 13, 2009.
Kathryn S. Koch, City Clerk
Attachments
A — Intergovernmental Agreement with Pitkin County BOCC
INTERGOVERNMENTAL AGREEMENT BETWEEN
THE BOARD OF COUNTY COMMISIONERS OF PITKIN COUNTY
AND THE CITY OF ASPEN REGARDING THE DISPOSITION OF THE
MUTUAL COVERAGE SERVICES AND COSTS BETWEEN THE
COMMUNITY DEVELOPMENT DEPARTMENTS
PARTIES
THIS INTERGOVERNMENTAL AGREEMENT (the "Agreement") is made this
day of 2009 by and between the BOARD OF COUNTY
COMMISSIONERS OF PITKIN COUNTY (hereinafter referred to as "County"), and the
CITY OF ASPEN (hereinafter referred to as "City").
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
of the parties and other good and valuable consideration, the adequacy and sufficiency of
which is hereby acknowledged, the parties agree as follows:
I. Termination of April 27, 2002, Intergovernmental Agreement.
The parties hereto terminate the prior Intergovernmental Agreement dated April 27,
2002, regarding the joint operations of their respective Community Development
Departments.
II. Purpose.
The purpose of this Intergovernmental Agreement is to continue to provide the best
customer service to the public of both the City and County Community Development
Departments. This Intergovernmental Agreement is designed and intended to:
• Improve the economic efficiency, staff productivity, and overall services
of the individual Community Development Departments of the City and
County.
• Facilitate clear communication and efficient planning and building
functions among all staff assigned to the City and County Community
Development Departments.
• Strive for uniform interpretation and implementation of laws, rules and
regulations of the City and County when appropriate and feasible.
• Facilitate the Building Departments' joint long range goals.
• Establish clear guidelines for the sharing of certain employees and
resources of the individual Community Development Departments.
City/County ComDev IGA - Page 1
The parties hereto intend that the staff members of each Community Development
Department shall continue to cooperate with each other to implement policies and
procedures that shall advance the purposes set forth above.
III. Reciprocal use of City and County Community Development Department
Employees.
In order to continue to provide the best customer service possible by ensuring that
personnel from each Community Development Department may provide services to each
other jurisdiction's customers when feasible and reasonable, the parties hereto agree to
provide reciprocal coverage of certain employees as set forth below. The Governments
shall make requests for reciprocal coverage 48 hours in advance, when possible. The City
and County Chief Building Officials shall determine the method for request and
reconciliation of billing in accordance with the following guidelines:
A. Inspections: Upon request by the County and subject to availability of staff
time, the City may perform any inspection the County may need for $65 per hour of
inspection time. Upon request by the City and subject to availability, the County may
perform any inspections for the City for $65 per hour of inspection time. The
inspection time shall be logged daily during the calendar year and reconciled
quarterly.
l . The Electrical Inspector shall be a City employee subject to City of Aspen
personnel policies and procedures. The Electrical Inspector position shall be paid
50/50, including overtime, vehicle, travel expenses, office space rental, computers
and all related expenses, by each jurisdiction. As a guideline, the inspector shall
work 20 hours per week for each jurisdiction. The inspections shall be
comprehensive and not limited to electrical inspections based on the needs of the
Chief Building Official. In order to verify hours spent for each jurisdiction the
inspector shall maintain daily logs. If one jurisdiction is seeking work to be
completed beyond the regular 80 hours bi-weekly by a staff member from the
other jurisdiction, then the jurisdiction that is seeking the completion of this work
will pay overtime at 100%. An annual joint top -set shall be placed on the
Electrical Inspector's expenses based on the City/County expense policies with
prior joint director approval. Both Chief Building Officials will have input
regarding employee evaluations for the Electrical Inspector.
2. Contract Inspectors' payment shall be calculated by the dividing the daily
cost of services by the total number of inspections performed (to establish a cost
per inspection) then multiplying the cost per inspection by the number of
inspections for each jurisdiction. Example: $600 for a full day of contract services
and 16 total inspections performed = $37.50 cost per inspection.
(City Inspection) 7 x $37.50 = $262.50
(County Inspections) 9 x $37.50 = $337.50
City/County CotnDev IGA - Page 2
Each jurisdiction shall pay the Contractor directly. Contract Inspectors shall
submit separate invoices for each jurisdiction.
3. The Cost associated with 1-4 above shall be tracked bi-weekly on
timesheets and reconciled between the City and the County on a quarterly basis at
the direction of the Chief Building Officers.
B. Plan Review: Upon request by the County and subject to availability of staff
time, the City may perform any plan review the County may need for $60 per hour.
Upon request by the City and subject to availability, the County may perform any
plan review for the City for $60 per hour. If plan review is completed beyond the
regular 40 hour work week at the request of the Chief Building Official or Supervisor,
then the jurisdiction that requested the completion of this work will pay 100% of the
overtime at 1.5 times the hourly inspection rate. ($90 per hour)
1. The plan reviews shall be logged daily during the calendar year and the
difference settled quarterly.
2. The Cost associated with item I above shall be tracked bi-weekly on
timesheets and reconciled between the City and the County on a quarterly basis at
the direction of the Chief Building Officials.
C. Chief Building Officials: Upon request by either the City or County and
subject to availability, the City and County Chief Building Officials may perform
typical tasks and functions as required offering mutual aid according to workload.
The Chief Building Official shall keep records for estimated time spent out of
jurisdiction. These records shall be tracked bi-weekly on timesheets and reconciled
quarterly, if deemed necessary by the Directors.
I_ In compensation for this, the Chief Building Official shall log his time for
this work and shall submit these records on a bi-weekly basis, to be paid $100 per
hour for actual hours spent working on behalf of the other jurisdiction.
2. The City and County Building Officials may co-author Building Code and
Building Code -related adoptions and amendments when appropriate and feasible.
This is intended to serve the contractor and design community by helping the plan
review and field inspection process to be as consistent between the City and
County as possible. The City and County shall strive to coordinate the timing of
building code and building code -related change adoptions so that the effective
dates are as concurrent as possible.
IV. City and County Cooperative Efforts.
It is the intent of the parties hereto to continue to create a working environment for all
personnel of the individual City and County Community Development Departments
City/County ComDev tGA - Page 3
which is conducive for harmonious, cohesive and unified team work whenever practical
for the provision of services to the public and other departments of the City and County.
Accordingly, the parties agree to continue to work cooperatively in the provisions of
services by the individual Community Development Departments and specifically agree
to cooperate and coordinate in the following areas of joint interest:
A. Joint Application and Interpretation of Regulations. The Chief Building
Officials shall establish, with the approval of the Directors, a method to handle the
purchase and sales of code books and the contractor licensing program. This method
shall address the administration of such program and sales and how revenues and
expenses shall be shared and reconciled.
B. Office Equipment. For the purchasing of office equipment used in common, the
actual costs shall be shared 50/50 by the City and County. The supplies and
maintenance on the fax machine, mail machine, the HP printer, the plotter and the
color printer will be split 50150. If an accurate tracking method is possible, then the
plotter, copier, and printers will be charged out according to copier codes for all
expenses including paper and maintenance. Air Freshener and bathroom supplies will
be split 50150. Kitchen supplies will also be split 50/50, with agreement between
both department directors prior to purchase.
C. Office Space. The City shall provide office space, at no charge, to the County
Community Development Department on the third floor of City Hall in the current
amount and general configuration. Each party shall maintain one or more conference
rooms within their respective space. Conference rooms may be used by either party
as needed and according to administrative policies for reserving the rooms. Overflow
office needs shall be the responsibility of and direct costs to the individual party.
The City shall pay for general upkeep and maintenance of the third floor office
space. Costs for office furniture shall be the direct responsibility of the individual
party unless otherwise agreed to by the Department Directors.
D. Office hours. The third floor of City Hall shall be open to the public during the
hours of 8 AM to 4:30 PM Monday through Friday, except holidays. Each
jurisdiction can set internal hours of availability for services, but recognizes 8 AM to
4:30 PM Monday through Friday as the hours the public can access the department by
the front door and elevator.
V. Workers' Compensation and Indemnification.
A. Workers' Compensation. The employer of the respective employees shall
provide workers' compensation coverage for their employees. For the purposes of
this Agreement, Pitkin County shall name the City of Aspen as additional insured on
its general liability policy and the City shall name Pitkin County as additional insured
on their general liability policy.
City/County ComDev IGA - Page 4
B. Indemnification.
1. Neither the City nor the County waive the defenses or limitations on
damages provided for and pursuant to the Colorado Governmental Immunity Act
(Sec. 24-10-101, et seq., C.R.S.), the Colorado Constitution, their respective home
rule charters or under the common law or the laws of the United States or State of
Colorado.
2. It is expressly acknowledged and understood by the parties hereto that
nothing contained in this Agreement shall result in, or be construed as
establishing an employment relationship not intended by the express terms of this
Agreement. Personnel identified as County employees shall be for all purposes
County employees. Personnel identified as City employees shall be for all
purposes City employees. It is anticipated that City and County employees will be
assigned to work on projects or assignments for the both governmental entities in
accordance with this Agreement. Nothing contained in this Agreement shall be
construed to make such sharing arrangements as evidence of an
employee/employer relationship. No agent, employee, or servant of one party
shall be, or construed to be, the employee of the other party. Each party to this
Agreement shall be solely and entirely responsible for its acts and for the acts of
its employees during the performance of this Agreement.
VI. Financial Reconciliation
It is agreed that the following elements shall be reconciled quarterly by both City and
County Finance Departments:
A. Contractor licensing program
B. Code book sales and purchase
C. Inspections, plan review, overtime and CBO coverage
D. Office Equipment and Supplies
Any additional expenses that will cause an unforeseen financial burden or incur a cost
impact on the IGA participants must be agreed upon and receive prior written approval to
proceed from both Community Development Directors.
VIL Modification, Annual Renewal and Termination of this Agreement
It is agreed that both jurisdictions shall re-evaluate the terms of this agreement at the end
of each calendar year to determine whether or not changes need to be made. This
agreement shall automatically be renewed, if changes are not made, for successive one-
year periods thereafter. During any one-year period, either party hereto may modify any
part of this Intergovernmental Agreement for any reason with the written agreement of
the other party or terminate all or part of this agreement with 90 days written notice.
City/County ComDev IGA - Page 5
VIII. Notices.
Any formal notice, demand or request provided for in this Intergovernmental Agreement
shall be in writing and shall be deemed properly given if deposited in the United States
Mail, postage prepaid to:
City of Aspen, Colorado
c/o City Manager
130 South Galena Street
Aspen, Colorado 81611
Board of County Commissioners of
Pitkin County, Colorado
c/o County Manager
506 East Main Street
Aspen, Colorado 81611
[signatures on following page]
City/County ComDev IGA - Page 6
APPROVED by the City Council of the City of Aspen on the th day of
2009.
ATTEST:
Kathryn S. Koch, City Clerk
CITY COUNCIL:
Michael C. Ireland, Mayor
Date:
APPROVED by the Board of County Commissioners of Pitkin County on the th
day of 2009.
ATTEST:
Jeanette Jones,
Deputy County Clerk
MANAGER APPROVAL:
Hilary Fletcher, County Manager
. • • �]�L��Z[.�ICi7��]C7uA
John Ely, County Attorney
BOARD OF COUNTY COMMISSIONERS
Patti Kay -Clapper, Chair
Date:
Steve Barwick, City Manager
John Worcester, City Attorney
City/County ComDev IGA - Page 7
MEMORANDUM Vid
TO: MAYOR AND ASPEN CITY COUNCIL
FROM: STEVE BOSSART, ASSET — PROJECT MANAGER
THROUGH: STEVE BARWICK, CITY MANAGER
SCOTT MILLER, CAPITAL ASSET DIRECTOR -—
DATE: October 2, 2009
RE: AABC HOUSING
REQUEST OF COUNCIL:
Capital Asset Staff requests Council's approval of Resolution #Ii—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 (Resolution # 11-2006).
BACKGROUND:
The AABC Ecp 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.
Selection Process/ Criteria: In June 2005 Staff was before Council requestinc
approval of a design contract with Steve Novy Architects. Council did not
approve the contract and directed staff to undertake a full developer model
process. A standard RFQ late in 2005 was issued for development teams to
participate in a design competition. The City received five (5) qualification
statements and after careful review, selected a shortlist of three (3) participants
to compete for the project by submitting a proposal to design and build a select
number of housing units for City employees. They were:
• Studio B architects
• Willis Pember Architects
• Steve Novy Architects
The teams were given six weeks to review Land Use criteria, Research AABC
covenants, Design, present and establish a preliminary project construction cost.
The evaluation committee received two (2) proposals, with Steve Novy architects
dropping out. The evaluation membership consisted of: Jessica King (ABC
resident), James Lindt (Comm. Dev), Tom McCabe (APCHA), Troy Rayburn
(Asset management), Ed Sadler (COA), Rob Snyder (John McBride's
representative/architect), and Jack Johnson (Councilman).
It was the Evaluation Panel's unanimous decision to select the Willis Pember
proposal, (see comments attached). They submitted that recommendation to the
Council for consideration in a public hearing. Council approved the
recommendation entering into a Part One contract with the WPA team. The
contract included the Land Use rezoning application process through
construction documentation and bidding.
WPA team composition
• Willis Pember Architects, Inc (lead) Architecture
• Janckila Construction, Inc Contractor
• Elk Mountain Planning, Julie Ann Woods Planner
• Dunnett Design Landscape Architect
• CORE, Gary Goodson, Randy Udall Green Advisors
• Efficiency in Mind, Mike Shurbier Energy Consultant
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 LLC of Aspen Colorado. The Part 1 contract
was executed in 2006.
In October 2006 the Board of Commissioners of Pitkin County (BOCC) granted a
rezoning from B-2 to AH/PUD (Ordinance # 032-2006), plus two zoning
variances. One variance allows the under building parking to be exempt from
F.A.R.; the second allows a zero setback on one property line. The final approval
from the BOCC was Novemeber 2006 and vested for three years.
2008 Project Delivery Modifications
In 2008 City Council appointed a Citizen Budget Task Force (CBTF),
commissioned the Alverez and Marsall Operational Audit and the McMahon &
Associates Financial Review, and seated the local volunteer Construction
Experts Group. Based on recommendations from these entities and Council
Resolution 69-2008, City Staff worked with outside counsel to develop a new
project delivery program known as the IPD (Integrated Project Delivery). The
primary tenet of IPD is a collaborative rather than adversarial approach. IPD
2
anticipates higher level City/Owner involvement in project design with an
integrated team including the architect, contractor (pre -construction services),
and other essential team members. On larger projects in particular, it was
recommended to add an outside Program Manager to bring specialized skills
where necessary and desirable. IPD collaboration begins immediately at the
conceptual design stage.
While the AABC Housing project was begun under the earlier developer model,
Staff has effectively stepped back into the process as Owner/ Program Manager
and instituted the collaborative aspects of IPD. At present we are halfway
through the project delivery process, with completion of the implementation
documents as the next step. Initial cost reviews led us to work with WPA 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 radial
geometry. We recognized value engineered savings through changes in the site
design (reduction in retaining wall construction), elimination of redundant
stairways, and removal of active solar systems.
We have since evaluated ten variations of construction including traditional site
built framing, factory panels, and complete modular units. We did this with direct
input from manufacturers and contractors. Simultaneously we researched
comparable projects to determine best methods and cost results. Due to our
original design document sets the cost of traditional construction resulted in hard
bid cost information (pending final approvals), while the factory 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 tied deed restrictions.
Pitkin County project approvals expire November 1 2009. County Planning
doesn't support extensions, though the BOCC may view affordable housing more
positively. A "do -over" before BOCC and P&Z may be less expensive than the
original land use application, though it would be subject to the new County code.
Staff and Council favor the IPD contract approach to give better City oversight in
design, and more accurate cost information leading to a Guaranteed Maximum
Price (GMP). The AABC project has already covered major aspects of the
delivery continuum, and under this contract would proceed to a GMP, taking
advantage of current approvals. The City's increased involvement has
resulted in a functional or hybrid IPD, with WPA managing the final
construction contract bids and negotiations. Due to these factors, the funds
already invested, and the approvals, we recommend continuing with the
proposed contract. WPA would have a GMP contract with the City and is at -risk
for cost increases. Should this approach be approved by Council, Staff would
immediately request proposals for and contract with a 3rd party Construction
Manager to assist City Staff during the remaining phases of development and
construction. The CM would provide another view and level of oversight at
construction observation, and finance and budget management on behalf of the
City as owner.
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 GMP contract. The Part 2 contract to be approved by this
Ordinance is 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, contractor selection & const ad
Pitkin County Comm. Dev. Fees:
$153,000
Projected cost of planning Pitkin County planning/fees
City Staff 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% Contt 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 will be approximately $457,000 for each 1 bedroom unit
and $251,000 for the one studio. These subsidy calculations are 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. (We request direction from Council on incorporating Building
America/DOE involvement.)
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 and as modified incorporating the functional IPD elements recognizing
the Value Engineering reductions balanced against sound envelope and system
designs.
ALTERNATIVES:
• Council may wish to revert to the original zero -energy concept, exploring
more active energy generation systems. Full zero energy or active solar
would be significant cost additions.
• Council may choose to restart the process utilizing a complete IPD
approach, or move to a different contract form with the current design and
development work. The approach outlined in this memo combines the
work product already completed and with an overlay of IPD elements.
• Council may wish to explore other modular options —steel shipping
containers are increasingly being suggested as a multifamily housing
solution. Available data suggests a possible 10-15% savings could be
realized in the unit (above parking) costs. This savings however may be
reduced by the re -start, re -design, and re -planning costs.
• Council may choose disposition of the parcel, requiring a public vote.
PROPOSED MOTION: I move to approve Resolution #TL_to proceed with Part
2 of the contract to construct the AABC Eco Lofts City Employee Housing project.
CITY MANAGER COMMENTS:
ATTACHMENTS:
AABC model photograph, A-3.1 Elevation, A2.1 Ground Floor Plan, A2.1 ve
Ground Floor Plan.
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RESOLUTION #7 7
(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 city orGsoen
city fluernev s Office
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
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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
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OSHA Occupational Safety and Health Administration
PHA Preliminary Hazards Analysis
SAE Society of Automotive Engineers
UL Underwriter's Laboratories, Inc.
UMTA United States Department of Transportation, Urban Mass Transportation
Authority
UD&FCD Urban Drainage and Flood Control District
MUTCD Manual on Uniform Traffic Control Devices
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 Developer's Proposal.
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4. Developer's Proposal in response to City's Request for Proposals, including
the Statement of Qualifications, etc.
5. Notice of Award.
6. Notice to Proceed.
7. Special Conditions.
8. Technical Specifications and Drawings.
9. Addendum No.
10. All written amendments to this Part 2 Agreement, including Change Orders.
11. Payment, performance, and maintenance bonds.
12. Liquidated Damages Form.
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.
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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.
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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
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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
commences to run, but no Work shall be done at
Contract Time commences to run and prior to a
conducted by the City.
2.5 Before Starting the Project:
on the date when the Contract Time
the site prior to the date on which the
mandatory pre -construction conference
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:
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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
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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.
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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.
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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 Developers 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 Developers 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
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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
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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
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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 Developer's 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
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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 surreys 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
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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
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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 Developers 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
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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
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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 copy of the
authority to act.
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 Indemnirication:
The Developer agrees to indemnify and hold harmless the City, its officers, employees,
insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage (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, or is claimed to be caused by, the
negligence, or other fault of the Developer, any Subcontractor of the Developer, or any
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 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 Developer's Insurance:
5.3.1. The Developer 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 Developer pursuant to Section 5.2 above and per the insurance
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
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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
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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.
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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
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 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
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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
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shall furnish all personnel, materials, and equipment necessary to perform the required
Work, including construction surveying. The cost of all such services shall be borne 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.
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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; (e) 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.
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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
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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
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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 Developers 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
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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 Developer's
achievement of Substantial Completion on time, whether or not acceptance of the substitute
for use in the Work will require a change in any of the Contract Documents (or in the
provisions of any other direct contract with the City for work on the Project) to adapt the
design to the proposed substitute and whether or not incorporation or use of the substitute in
connection with the Work is subject to payment of any license fee or royalty. All variations of
the proposed substitute from that specified will be identified in the application and available
maintenance, repair and replacement service will be indicated. The application will also
contain an itemized estimate of all costs that will result directly or indirectly from acceptance
of such substitute, including costs of redesign and claims of other 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 Developer's expense additional
data about the proposed substitute.
6.8.2. If a specific means, method, technique, sequence or procedure of construction is
indicated in or required by the Contract Documents, the 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 Developer's
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.
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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:
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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 attorney's fees and court costs) arising out of any infringement of patent
rights or copyrights incident to the use in the performance of the Work or resulting from the
product or device not specified in the Contract Documents, and shall defend all such claims
in connection with any alleged infringement of such rights.
6.12 Permits:
Unless otherwise provided in the Special Conditions, the 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
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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:
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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
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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.
G. 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.
d. 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.
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(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.
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(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
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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:
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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.
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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 Clarirication 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.
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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.
9.7. 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.
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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
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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
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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
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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.
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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.
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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.
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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
Subcontractors 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.
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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.
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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.
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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
Supplier's, standard warranty exceeds the minimum City requirements
as set forth in this Article or elsewhere in the Contract Documents, the
Subcontractor's, manufacturer's, or Supplier's standard warranty shall
apply. Otherwise, the 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,
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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
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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.
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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.
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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 City's
written instructions, either correct such Defective Work, or, if it has been rejected by City,
remove it from the site and replace it with non -defective Work. If the 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.
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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 of -the 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.
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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;
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14.2.4.2. Payments to Subcontractors shall be based on all moneys due the
Subcontractor under the terms of the contract between the Developer and
Subcontractor;
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:
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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.
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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 party 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 furnished
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
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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
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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
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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 II, 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
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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.
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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.
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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 parry'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.
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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 Developers 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.
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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.
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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 party 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
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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
D84-03.doc "DB4
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:
RECOMMENDED FOR APPROVAL:
ATTESTED BY:
CITY OF ASPEN, COLORADO
APPROVED AS TO FORM:
By:
City Attorney
DEVELOPER: ul�n
Title: /N wPA . L L. G
Agreement shall not be binding upon the City of Aspen unless duly executed by the City Manager or I
or of the City of Aspen following a resolution of the Aspen City Council authorizing the City Manager
or to execute the same.
Developer shall commence Work required by this Agreement within seven (7) calendar days after the date
_.._ . _ w__ __ _11, __- -i_n 1... AO 9A 9f14/111
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.
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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. All deliverable6 pFevided by Developer to City in aGGGFdanGe with the Part 1
Agreement, ORG!udiRg, but not limited to, these deliverables identified as pa
Drawings to be dated Sept. 1, 2009 (Titled: 100% CD_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.
q D I D al ' non a t_ City s Request for Proposals innL ding
.., p..,. �., .. r......... ter. _.._ _..� _ .._�____ _�'___ --�
the Statement of Q alifiGatiens eta
G.
All Addenda which pertain to the Contract Documents, City approved
alternates, and schedule of allowances when approved and accepted by
t I Addendum No. I_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 -
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
shall reflert the overall iRtent f the VV Fk to b r .f e.d by Deyelene in this Dart 7
A.d.ditiennl Sen•ines s .detailed in the Pa.+ 1 An ee en4
Subcontractor — includes the selected General Contractor.
2 1 Addendum No. I_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.
0
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. Cn.. a of Wark attached as Fxhobot A
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 drawings.
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} Special GenditienG-.
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 not -rely upon the accuracy of the technical data contained in such reports,
or upon 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. DevelepeF shall have full
Fespensibility with r neGt to subs ,dace GRdi+ S at the 6 +e City assumes all risks of
deductions and conclusions made as to the nature of the soils, the difficulties of making
3 1 Addendum No. 1_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 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. , GRIY n the e e^t that the De._eleper furnishes
r^
the G ty with Gertified test data and FeGUItS WhiGh GGRfirrn the existence of Hazar
is.
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 IndemnWication:
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 ^evelopeFs, 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 addit anal insuFe ; 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
C�[r
ARTICLE 7 — OTHER WORK
7.1 and 7.2 -
ARTICLE 11 CHANGE OF CONTRACT PRICE OR CONTRACT TIME
11.4.7 Overhead and Profit.
(1) Two peFGent (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 °
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.
14.11.7. 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.
d shall b in addit"GR toeveFy otheF FeFnedy now OF h f+ . enfeceable at 1
equity, by statute, OF undeF GentFaGt-.
8 1 Addendum No. I_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. , ORGluding but not limited to tart remedies. Such rights and remedies shall
survive the acceptance of the Work or any termination of the Contract Documents.
DevelopeF agrees that the eGGRGMiG 1066 Fule as set forth "R the Town of Alma v AZZG-o
ClPfRVAR iR the 1A/ rL under the Agreement
CITY OF ASPEN
WPA, LLC
A Colorado limited liability company
By- CIO,"')'
Willis Pember, manager
Date:
Date: 9 • 0 9
9 1 Addendum No. 1_Part 2 Agreement 212 AABC City Employee Housing
MEMORANDUM
TO: Mayor Ireland and City Council
vi
FROM: Jennifer Phelan, Community Development Deputy Directo<�
RE: Aspen Walk (404 Park Avenue and 414 Park Circle) — Request for an extension
of a Conceptual Planned Unit Development (PUD) approval
MEETING
DATE: October 13, 2008
APPLICANT /OWNER:
PFG Aspen Walk, LLC (404 Park Avenue) and
Aspen Pitkin County Housing Authority (414
Park Circle)
REPRESENTATIVE:
Stan Clauson, Stan Clauson Associates, Inc.
Tom McCabe, Executive Director, APCHA
LOCATION:
Lot 3, Sunny Park Subdivision and Lot 5, Sunny
Park Subdivision commonly known as 404 Park
Avenue and 414 Park Circle, respectively.
APPLICANTS' REQUEST:
The applicants received conceptual approval to
redevelop the site with a mix of market rate and
affordable housing. Conceptual approvals
become void unless a final application is
submitted within one year. The conceptual
approval is close to expire and the applicants are
requesting a one year extension of the conceptual
approval.
CURRENT ZONING & USE
Residential multi -family (R/MF) zone district
with a PUD overlay. 404 Park Ave. contains 14
free-market dwelling units while 414 Park Circle
contains 11 affordable housing dwelling units.
PROPOSED LAND USE:
A residential multi -family building
containing sub -grade parking,18 affordable
housing units and 14 free-market residential
housing units.
STAFF RECOMMENDATION:
Staff recommends that the City Council
approve the one year extension request.
404 Park Circle
RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE):
"I move to approve Resolution No. Series of 2009, approving a year extension of the
Conceptual PUD approval for Aspen Walk."
CITY MANAGER COMMENTS:
ATTACHMENTS:
EXHIBIT A — Letter from Thomas Klassen dated September 28, 2009
EXHIBIT B — City Council Resolution No. 74 (Series of 2008)
EXHIBIT C — Plans of the Conceptual PUD approval
RESOLUTION NO. d L
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING AN
EXTENSION OF THE CONCEPTUAL PLANNED UNIT DEVELOPMENT APPROVAL
GRANTED VIA RESOLUTION NO. 74 (SERIES OF 2008) FOR ASPEN WALK,
COMMONLY DESCRIBED AS 404 PARK AVENUE AND 414 PARK CIRCLE,
LEGALLY DESCRIBED AS LOTS 3 AND 5, SUNNY PARK SUBDIVISION, CITY OF
ASPEN, PITKIN COUNTY, COLORADO
Parcel ID:
2737-074-04-705
2737-0741-04-701
WHEREAS, the Community Development Department received a written request for a
one year extension of the Conceptual PUD approval granted through Resolution No. 74 (Series
of 2009) from PFG Aspen Walk, LLC and the Aspen Pitkin County Housing Authority
represented by Stan Clausen of Stan Clauson Associates, Inc; and,
WHEREAS, the request was submitted no less than thirty days prior to the October 28,
2009, expiration date of the Conceptual PUD approval; and,
WHEREAS, the Conceptual PUD granted, with conditions, the applicant to submit a
Final PUD application to develop 14 free-market residential units and 18 affordable housing
units on the subject site; and,
WHEREAS, pursuant to Section 26.445.030 D., Limitations, of the Land Use Code,
Conceptual PUD approval may be extended by City Council, "at its sole discretion and for good
cause shown;" and,
WHEREAS, on October 13, 2009, the City Council considered the request for the year
extension of the Conceptual PUD approval; and,
WHEREAS, the Council finds that good cause has been shown by the Applicants to
grant a year extension of the Conceptual PUD approval.
NOW, THEREFORE, BE IT RESOLVED that the Aspen City Council approves a one
year extension of the Conceptual Planned Unit Development granted in Resolution No. 74
(Series of 2008) subject to the conditions listed in Section 1 below.
Section 1:
The approval is subject to the following conditions:
A. The one year extension of the Conceptual PUD approval shall expire on October 28, 2010.
B. All conditions outlined in Resolution No. 74 (Series of 2008) are valid and in effect.
Page 1 of 2
Section 2•
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 3•
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 City Council at a regular meeting on October 13, 2009.
Attest:
Kathryn S. Koch, City Clerk
Approved as to form:
City Attorney
Michael C. Ireland, Mayor
Page 2 of 2
PFG ASPENWALK, LLC
September 28, 2009
Aspen City Council
c% Jennifer Phelan, AICP
Deputy Community Development Director
130 South Galena Street
Aspen, CO 81611
Re: . AspenWalk Project Update
Request for one year extension to Conceptual PUD Approval (Resolution No. 74, Series 2008)
Dear City Council:
We would like to take this opportunity to update you on the progress we have made toward satisfying
certain conditions required for issuance of Final PUD Approval under Resolution No. 74, Series 2008 and
also request a one year extension to the Conceptual PUD Approval that is currently in effect.
Elimination of Thomas J Petters and James Wehmhoff from the project and the project being free from
anv risks associated with their legal situations.
Neither has had any involvement in the project since their assets were placed under the control of a
federal court appointed receiver on October 6, 2008. Originally, we believed an expeditious buyout of
their interests would be possible however the Receiver required us to demonstrate through dialogue in the
marketplace and other independent verification that Petters's and Webmhoffs interests were worthless.
As the real estate markets have declined into 2009, we have been able to satisfy the Receiver of this and
are now finalizing the procedure for the disposition of each of their interests. This includes insuring the
project and its stakeholders are free from any possible legal or financial risk associated with the legal
situations of Petters and Wehmhoff.
Availabilily of sufficient financing to pay the total cost and completion of the project.
At the outset of our application in October 2007, we had financing for the full construction cost of the
project. When Tom Petters's assets were placed under receivership in October 2008, the project's tender
ceased funding on its commitment. Due to the credit crunch that started in October 2008, we have spent a
great deal of time over the past 11 months seeking debt and equity capital willing to invest in the project.
We have successfully found capital sources that are willing to invest in the project now to fund costs
required to obtain Final PUD Approval and also sources that are willing to invest in the project after it has
obtained Final PUD Approval and fund construction.
We were delayed until April 2009 in starting a dialogue with our current lender on a
restructuring(resolution to its loans due to the process involved with the Receivership and the lender's
prioritization of other loans in its portfolio that required attention due to the severe recession. Since
August 2009, we have had productive dialogue with the current lender and expect to come to a
satisfactory resolution with them.
4400 Baker Road
Minnetonka, AN 55343
952.936.5531
Aspen City Council
September 28, 2009
Page 2
Off site affordable housing requirement
RECEIVED
SEP 2 8 2009
G1-FY QF A6VLN
;GMMUNITY DEVELOPMENT
Although the preponderance of our efforts have been focused on the project finance matters detailed
above, we have actively pursued the identification of off -site affordable housing mitigation locations as
required by the conditions of approval. These efforts include:
• Engaging a real estate broker to assist us in searching for appropriate locations;
• Providing a letter to Pitkin County in response to the possibility that the County may be interested
in a joint -venture activity to produce affordable housing,
• Investigating the possibility of participating in the redevelopment of 1230 East Cooper Avenue, a
property which has recently come into the ownership of the APCHA.
With respect to 1230 East Cooper Avenue, we have toured the site with the Housing Director, met with an
architect who has prepared conceptual plans for redevelopment of the site as affordable housing, and met
with the Housing Authority Board to express our interest as a potential redeveloper of the site for
affordable housing mitigation. At this point, we have gone as far as we can on this issue until the
financial matters are resolved and we are in a position to put a property under contract.
Moreover, at the meeting with the Housing Authority Board, we detailed current efforts to resolve all
financial issues, reaffirmed our commitment to the project, and determined that we would be providing
the Board with specific timetable and product revisions to our Joint Development Agreement as soon as
practicable.
Conclusion
We believe that these activities represent a good faith effort on our part to address the conditions of
approval in what must surely be acknowledged as a difficult economic environment This request is
submitted timely thirty days prior to the expiration date of our current conceptual approval in accordance
with the provisions of Section 26.445.030(D) of the City of Aspen Land Use Code. We respectfully
request an extension of our Conceptual Approval for a period of one year, specifically to October 28,
2010. In the interim, we will work diligently to bring forward a Final Approval Application that meets
the requirements laid out in Conceptual Approval and which will bring this project to fruition.
Since
Thomas Klassen
PFG AspenWalk, LLC
CC: Thomas Salmen—PFG AspenWalk, LLC
Stan Clauson— Stan Clauson Associates, Inc.
Attachment: Staff Approval Fee in the amount of $735
RESOLUTION NO, 74
(SERIES OF 2008)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A
CONCEPTUAL PLANNED UNIT DEVELOPMENT WITH CONDITIONS FOR ASPEN
WALK, COMMONLY DESCRIBED AS 404 PARK AVENUE AND 414 PARK CIRCLE,
LEGALLY DESCRIBED AS LOTS 3 AND 5, SUNNY PARK SUBDIVISION, CITY OF
ASPEN, PITKIN COUNTY, COLORADO
Parcel ID.
2737-074-04-705
2737-0741-04-701
WHEREAS, the Community Development Department received an application from
PFG Aspen Walk, LLC and the Aspen Pitkin County Housing Authority represented by Stan
Clauson of Stan Clauson Associates, Inc., requesting the Planning and Zoning Commission
recommend approval of a Conceptual Development Plan for a Planned Unit Development
(PUD); and,
WHEREAS, an application was submitted to consider both Lots 3 and 5 of the Sunny
Park Subdivision as one site to be redeveloped with a multi -family structure containing twenty-
five (25) affordable housing units and fourteen (14) market rate dwelling units; and
WHEREAS, the application requested that the PUD's dimensional standards meet the
underlying zone district standards of the Residential Multi -Family (RMF) zone district with the
exception of Maximum Height, Maximum Allowable Floor Area, Minimum Setback and
Minimum Off -Street Parking; and
WHEREAS, the Community Development Department received referral comments from
the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire
Protection District, and Parks Department as a result of the Development Review Committee
meeting; and,
WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD
approval may be reviewed by the Planning and Zoning Commission at a duly noticed public
hearing after considering recommendations by the Community Development Director and
relevant referral agencies; and,
WHEREAS, during a regular meeting on April 15, 2008, the Planning and Zoning
Commission opened a duly noticed public hearing to consider the project and continued the
public hearing to May 20, 2008; and
WHEREAS, on May 20, 2008, the Planning and Zoning Commission continued the
public hearing on Aspen Walk, reviewed the proposed changes of the project and design which
included fourteen (14) market rate dwelling units and twenty-four (24) affordable housing units
Page 1 of 6
and recommended City Council approve the Conceptual Planned Unit Development application
by a four to two (4-2) vote, with the findings and conditions listed hereinafter; and,
WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD
approval may be reviewed by the City Council at a duly noticed public hearing after considering
recommendations by the Community Development Director, Planning and Zoning Commission
and relevant referral agencies; and,
WHEREAS, during a regular meeting on August 11, 2008, the City Council opened a
duly noticed public hearing to consider the project; and,
WHEREAS, on August 11, 2008, the City Council at a public hearing on Aspen Walk,
reviewed the project and design which included fourteen (14) market rate dwelling units and
twenty-four (24) affordable housing units and continued the hearing to August 25, 2008; and,
WHEREAS, on August 25, 2008, at a continued public hearing the City Council
considered the application and upon the applicants' request continued the public hearing to
September 29, 2008; and,
WHEREAS, prior to the September 29'h hearing date, legal charges were filed against
Mr. Thomas Petters and Mr. James Wehmhoff who have an ownership interest in PFG Aspen
Walk, LLC creating concern over potential financial and legal risks associated with the project;
and,
WHEREAS, on September 29'11 hearing the Applicants presented an amended
application which included fourteen (14) market rate dwelling units and eighteen (18) affordable
housing units and requesting a variation of the allowable Floor Area Ratio to 1.28:1; and,
WHEREAS, the September 29"' hearing was continued to October 141h and then to
October 27'h; and,
WHEREAS, at the October 27'h hearing City Council considered the amended proposal
and approved the Conceptual Planned Unit Development application by a four to zero (4-0) vote,
with the findings and conditions listed hereinafter; and,
WHEREAS, Conceptual PUD approval, granted by City Council, shall only grant the
ability for the applicant to submit a Final PUD and the proposed development is further subject
to Final PUD review as well as additional relevant land use review approval pursuant to the
Municipal Code; and,
WHEREAS, the Council finds that the development review standards for Conceptual
PUD have been met, as long as certain conditions are implemented.
NOW, THEREFORE BE IT RESOLVED that the Aspen City Council approves the
Conceptual Planned Unit Development for the project known as Aspen Walk, subject to the
conditions listed in Section 1 below.
Page 2 of 6
Section 1:
The approval is subject to the following conditions:
A. The Final PUD application shall reflect and demonstrate compliance with the findings of the
Commission and City Council, allowing for the development of eighteen (18) affordable
housing units and fourteen (14) market rate units on the site. Additionally, the Final PUD
may be submitted with the following dimensional standards as requested in the
application:
1) The Maximum Allowable Floor Area shall be no greater than 40,968 sq. ft. or a Floor
Area Ratio of 1.28:1.
2) The Maximum Allowable Height shall be no greater than 32 (excepting elevator shafts)
feet as outlined in the application.
3) The Minimum Off -Street Parking standard for the affordable housing units shall be 23
spaces for the 18 affordable housing units and the Applicants will provide two electric
vehicles for the use of the residents of the affordable housing.
B. The Final PUD's design shall be in substantial compliance with the conceptual PUD,
inclusive of the proposal of two structures and a shared underground parking facility.
C. The Final PUD application shall include:
1) An application for Final PUD application and the proposed development is further
subject to Final PUD review as well as associated land use review approvals 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.
D. Prior to the issuance of Final PUD approval by the City Council, the Applicants shall
demonstrate to the satisfaction of the City: (1) the elimination of Thomas J. Petters and
James Whemhoff from any project ownership or involvement; and (2) the project is in no
way subject to any closing liability or other legal or financial risks arising from the
foregoing concerns over potential financial and legal risks associated with the project.
E. Prior to the issuance of Final PUD approval by the City Council, the Applicants shall
provide evidence to the satisfaction of the City Attorney of the availability of sufficient
financing to pay the total cost and completion of the project. Prior to issuance of any
building permits and closing of the 414 Park Circle land purchase, Applicant shall provide
evidence that sufficient financing is in place to pay the total cost and completion of the
project. This may include, but is not limited to, a financing commitment, a general contract,
letters of credit, escrow money or completion bonds, as determined by the City Attorney in
his sole discretion.
F. Conceptual Approval is explicitly conditioned upon receipt by City Council of a letter of
opinion from an expert on receivership and related proceedings; said expert to be of
Page 3 of 6
Council's choice and paid for by the applicant. Further, Council may, at its sole
discretion upon review of expert opinion of the financial state of this application
including but not limited to the disposition of this property, withdraw their approval.
Section 2: Building
The final design shall meet adopted building codes and requirements if and when a building
permit is submitted. Clarification and code compliance on the shared property line, exiting from
the basement garage, exiting from the market rate units, exiting from each story, elevator
openings, accessible parking spaces, accessible entries, and the 2003 Efficient Building Program
is required.
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.
Resolution of the proposed land swap (approximately 618 sq. ft. of public right of way for a
certain amount of private property) shall be resolved prior to Final PUD application. Storm water
drainage fees may be applicable to this development proposal.
In order to achieve the ROW swap and accomplish the pedestrian connectivity and appropriate
traffic calming for the project, the alignment of Park Ave & Park Circle intersection needs to be
consistent with the Park Avenue Pedestrian and Transportation Plan. This includes shifting the
roadway and installing sidewalk on the east side of Park Ave. It also includes a speed table and
associated crosswalk just south of the intersection. A traffic impact analysis will be required for
the project.
Section 4: Affordable Housin¢
Provision of affordable housing shall provide 100% replacement (Subsection 26.470.070 5. La.)
for the existing free market units. Additional affordable housing associated with the project
beyond the eighteen affordable housing units proposed on -site may be provided off -site. The
existing affordable housing units to be demolished have been determined to house 17.5
employees.
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: 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.
Section 7: Sanitation District Requirements
Service is contingent upon compliance with the District's rules, regulations, and specifications,
which are on file at the District office.
Page 4 of 6
Section 8: 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.
Section 9: Exterior Li2htina
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 10: School Lands Dedication and Impact Fees
The Applicant shall pay all impact fees and the school lands dedication assessed at the time of
building permit application submittal and paid at building permit issuance.
Section 11: Parks
A formal vegetation protection plan shall be required with building permit application. Final
layout of the plantings within the public right-of-way require Park Department approval and
shall meet the comments from the Parks Department during the Development Review Committee
meeting.
Section 12:
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 13:
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 City Council at a regular meeting on October 27, 2008.
Attest::�W/
Flo`_
Kathryn S och, City Clerk Michael C. Ireland, Mayo
Approved as to form:
Ci`AttdifiAy
Page 5 of 6
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MEMORANDUM
TO: Mayor and City Council
FROM: Kim Peterson, Global Warming Project Manager
THRU: Phil Overeynder, Utilities and Environmental Initiatives Director
DATE OF MEMO: October 5, 2009
MEETING DATE: October 13, 2009
RE: lst reading of Ordinance No. 02�— , Consenting to the
Improvement for Renewable Energy and Energy Efficiency
Purposes to Any Residential or Commercial Property Within the
City by the County of Pitkin.
REQUEST OF COUNCIL: Council is asked to conduct a first reading of Ordinance No5�
Consenting to the Improvement for Renewable Energy and Energy Efficiency Purposes to Any
Residential or Commercial Property Within the City by the County of Pitkin.
BACKGROUND: The purpose of this resolution is to allow the City of Aspen to opt in to the
local improvement district for the Energy Smart Loan Program. On September 1, 2009 the
Pitkin Board of County Commissioners approved a resolution referring ballot measure IA. The
question to be posed to the voters on November 3, 2009 will be the authority for Pitkin County to
issue bonds in the amount of $7 million to create the "Energy Smart Local Improvement
District" arising under Section 20 of Article X of the State Constitution.
If Referendum IA passes, Pitkin County will create the Energy Smart Loan Program. This
program will provide low interest loans to property owners to make energy efficiency and
renewable energy improvements to their properties. The loans would then be repaid as a special
assessment to the owner's property taxes.
This resolution allows the City of Aspen to opt in to this program, thereby making the loans
available to property owners within the city's municipal boundary.
DISCUSSION: Finding upfront capital is a common barrier to property owners taking action on
making energy efficiency and renewable energy upgrades to their buildings. By providing a low
interest loan that is tied to the property, more property owners will be able to access the money
needed to improve their building's energy performance. This program is voluntary and only
owners who take loans will have a financial obligation to make loan repayments via a special
assessment on their property taxes.
Page 1 of 2
On September 28, 2009 Council passed a resolution in support of Referendum IA and the
Energy Smart Loan Program.
This program will generate green jobs and put the construction trades back to work. It also
supports the goals of the Canary Action Plan. It also dovetails well with the City's residential
energy audit program. Those residents who have energy audits will have identified the best
measures to improve their homes energy performance and will be ready to apply for the Energy
Smart Loan Program when it becomes available.
FINANCIALBUDGET IMPACTS: There will be no financial or budget impacts to the city as
a direct result of this program. Pitkin County will be administering the Energy Smart Loan
Program. The program is designed to cover administrative costs to the county by charging a
small application fee. The Governor's Energy Office has also committed financial support to the
administration of the program.
ENVIRONMENTAL IMPACTS: This ordinance is anticipated to create positive
environmental impacts for the City. When home and business owners make energy efficiency
and renewable energy improvements to their properties, their demand for carbon based sources
of energy will decrease. This will result in less greenhouse gas emissions in the Aspen
Emissions Boundary area.
RECOMMENDED ACTION: Staff recommends that Council approve the first reading of
Ordinance No.;�Q- Consenting to the Improvement for Renewable Energy and Energy
Efficiency Purposes to Any Residential or Commercial Property Within the City by the County
of Pitkin. Staff requests that Council schedule a second reading of this Ordinance on October
26, 2009.
ALTERNATIVES: Council can opt not to support this Ordinance. In that case, residents and
business owners with the Aspen Municipal Boundary would not be able to participate in the
Energy Smart Loan Program.
PROPOSED MOTION: "I move to approve Ordinance No. � Consenting to the
Improvement for Renewable Energy and Energy Efficiency Purposes to Any Residential or
Commercial Property Within the City by the County of Pitkin."
CITY MANAGER COMMENTS:
Page 2 of 2
ORDINANCE NO. ZZ"
Series of 2009
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, CONSENTING TO THE IMPROVEMENT FOR RENEWABLE
ENERGY AND ENERGY EFFICIENCY PURPOSES TO ANY RESIDENTIAL
OR COMMERCIAL PROPERTY WITHIN THE CITY BY THE COUNTY OF
PITKIN.
WHEREAS, pursuant to part 6 of article 20 of title 30, Colorado Revised Statutes, as
amended (hereinafter the "Act"), Pitkin County has authorized a local improvement
district for the purpose of encouraging, accommodating, and financing Energy Efficiency
and Renewable Energy Improvements (both as defined in the Act); and
WHEREAS, Pitkin County via the Pitkin County Energy Smart Local Improvement
District (the "District") desires to encourage, accommodate and provide financing for
Energy Efficiency and Renewable Energy Improvements ("EE/RE") (the "Project")
pursuant to the Act for the purpose of accomplishing the Project, including paying all
costs necessary and incidental thereto; and
WHEREAS, the City Council of the City of Aspen, Colorado, (the "Council") finds as
follows:
• The creation of the Pitkin County Energy Smart Local Improvement
District will benefit property owners in the Aspen municipal boundary by
enabling them to participate in the Energy Smart Loan Program;
• The Canary Action Plan calls for community wide greenhouse gas
emissions of 30 percent by 2020 and 80 percent by 2050 from 2004
baselines;
• City participation in the District and Energy Smart Loan Program will
enable property owners to improve the energy performance of their
buildings thereby furthering the goals of the Canary Action Plan;
• The City's Utilities Efficiency Program offers incentives for property
owners to have energy audits on their buildings to help identify the best
energy improvement measures; and
WHEREAS, this Council finds that giving such consent to allow such participation is in
the best interests of the residents and property owners of the City
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section 1. The City hereby consents, as provided in Section 30-20-603(1)(a), Colorado
Revised Statutes, as amended, to energy efficiency and renewable energy systems and
improvements being installed upon any private property within the City -through Pitkin
County's Energy Smart Local Improvement District, pursuant to the Act, in order that
owners of properties located anywhere within the City_may voluntarily agree to
participate in the District's program.
Section 2. Any future consents that may be necessary or desirable for properties
hereinafter included within the City of Aspen may be given by ordinance or resolution as
this Council in its discretion determines.
Section 3. The officers of the City_shall take such other steps or actions necessary or
reasonably required to carry out the terms and intent of this Ordinance and Consent.
Section 4. If any section, paragraph, clause, or provision of this Ordinance shall for any
reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
section, paragraph, clause, or provision shall not affect any of the remaining provisions of
this Ordinance.
Section 5. All actions not inconsistent with the provisions of this Ordinance heretofore
taken by the Council and the officers of the City regarding this matter hereby are ratified,
approved, and confirmed.
Section 6. This Ordinance shall be in full force and effect thirty (30) days after
publication following final adoption.
Section 7. A public hearing on this ordinance will be held the a day of October 2009.
INTRODUCED, READ AND SCHEDULED FOR SECOND READING as provided
by law, by the City Council of the City of Aspen on the day of October 2009.
Attest:
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and approved this
2009.
Attest:
Kathryn S. Koch, City Clerk
Michael C. Ireland, Mayor
day of
Michael C. Ireland, Mayor
MEMORANDUM
VM&O
TO: Mayor Ireland and City Council
FROM: Chris Bendon, Community Development Director I V W
RE: Aspen Art Museum Temporary Use Permit — Public Hearing
Resolution No. 81� Series of 2009.
DATE: October 13, 2009
Land Use Request:
The Applicant is requesting a Temporary
Use Permit to install an art piece on the
exterior of the Art Museum building. The
installation does not meet the limitations of
the City's sign code (because it includes
neon) but may be approved as a temporary
use. The installation is expected to start
December 10"' and run through January.
Staff Recommendation: Approval.
Location:
The Aspen Art Museum — 590 North Mill
Street
Applicant:
The Aspen Art Museum.
Representative:
Heidi Zuckerman Jacobson, Director and Chief
Curator, AAM.
SUMMARY:
The Art Museum is requesting a temporary use permit to place a piece of art on the
exterior of the building. The piece falls within the City's definition of a sign and the art
work includes neon which is prohibited in the City's sign code. City Council may grant a
temporary use permit to accommodate the installation. The installation is expected to start
on December 1 Os' and run through the end of January.
The above picture is a mock-up of the installation. The applicant will show additional
graphics at the hearing to better describe the proposal.
Although the installation does not comply with the "no -neon" clause of the City's
regulation, the art work is associated with an exhibition, is not for commercial purposes,
and will be in place for a limited time. Staff believes this type of flexibility should be
allowed and is recommending approval. Staff recommends the Temporary Use Permit
be granted.
RECOMMENDATION:
Staff is recommending approval.
RECOMMENDED MOTION: op
"I move to approve Resolution No. Q, Series of 2009, approving a temporary art
installation at the Aspen Art Museum.
CITY MANAGER COMMENTS:
ATTACHMENTS:
A — Temporary Use Criteria
EXHIBIT A
AAM Art Intallation
REVIEW CRITERIA & STAFF FINDINGS:
26.450.030 Temporary Use
When considering a development application for a temporary use, City Council shall consider,
among other pertinent factors, the following criteria:
The location, size, design, operating characteristics, and visual impacts of the proposed use.
Staff Finding:
The installation will be visible. It will be installed on one of the primary facades of the
Art Museum building and will be visible from the parking lot and the bike path. Staff
believes that the size and design of the temporary installation will not create substantial
negative visual impacts and the limited timeframe for the installation will not cause any
long-term impacts. Staff finds this criteria to be met.
The compatibility of the proposed temporary use with the character, density and use of
structures and uses in the immediate vicinity.
Staff Finding:
Temporary art installations are compatible with the Aspen Art Museum building and
grounds. This use and operating characteristic has been in place within this
neighborhood for many years and the proposed installation is not expected to have any
off -site impacts. Staff finds this criterion to be met.
The impacts of the proposed use on pedestrian and vehicular traffic and traffic patterns,
municipal services, noise levels, and neighborhood character.
Staff Finding:
Staff does not believe that the installation will have any negative impacts on vehicular
traffic, traffic patterns, municipal services, noise levels. The installation is not
expected to draw more people to the site than are typically expected in the normal
course of operation. Staff does not expect any substantial effect upon the
neighborhood character. Staff finds this criterion to be met.
The duration of the proposed temporary use and whether a temporary use has previously been
approved for the structure, parcel, property or location as proposed in the application.
Staff Finding:
The installation is expected to run from December 10 s through the end of January.
Previous temporary uses have been approved for this site, but for other needs and not
similar to this request. There are no outstanding issues with previous temporary uses.
Staff finds this criterion to be met.
AAM Temp Use Comments. Page 1
The purposes and intent of the zone district in which the temporary use is proposed.
Staff Finding:
The Aspen Art Museum is zoned Public. The temporary installation is in keeping with
the purposes and intent of the zone district and the museum. Staff finds this criterion to
be met.
The relation of the temporary use to conditions and character changes which may have
occurred in the area and zone district in which the use is proposed.
Staff Finding:
The Aspen Art Museum has a long history of rotating exhibits on this property both
indoors and outdoors. No significant changes to this property or the surrounding area
have occurred that would affect this request. Staff finds this criterion to be met.
How the proposed temporary use will enhance or diminish the general public health, safety, or
welfare.
Staff Finding:
The art installation will help the Aspen Art Museum Institute to continue to their mission
to engage audiences in thought -provoking experiences of art, culture, and society. Staff
believes this is beneficial to the entire community and does not represent a threat to the
public health, safety or welfare. Staff finds this criterion to be met.
AAM Temp Use Comments. Page 2
RESOLUTION NO. 35
(Series of 2009)
A RESOLUTION OF THE ASPEN CITY COUNCIL GRANTING A
TEMPORARY USE APPROVAL TO THE ASPEN ART MUSEUM FOR THE
INSTALLATION OF ARTWORK MADE WITH NEON ON THE EXTERIOR OF THE
ASPEN ART MUSEUM BUILDING, 590 NORTH MILL STREET, ASPEN,
COLORADO.
Parcel ID: 2 73 7-0 73-00-859
WHEREAS, pursuant to Section 26.450 of the Aspen Municipal Code, the Applicant,
The Aspen Art Museum, represented by Heidi Zuckerman Jacobson, has submitted an
application for a Temporary Use Permit to place a piece of artwork on the exterior of the Aspen
Art Museum Building located at 590 North Mill Street. The art piece includes neon, which is
prohibited in the City's sign code but which may be approved as a temporary use; and,
WHEREAS, the installation is expected to start on December 10, 2009, and be in place
through the end on January, 2010, plus additional time which may be necessary to erect and
remove the artwork; and,
WHEREAS, the Community Development Department has reviewed the temporary use
application and recommends that the City Council approve the temporary use permit; and,
WHEREAS, the Aspen City Council has reviewed and considered the temporary use
request under the applicable provisions of the Municipal Code as identified herein, has reviewed
and considered the recommendation of the Community Development Director, the applicable
referral agencies, and has taken and considered public comment at a public hearing; and,
WHEREAS, City Council finds that the proposed temporary use is consistent with the
character and existing land uses of the surrounding parcels and neighborhood and that granting
the temporary use permit will not adversely impact the community or the neighborhood; and,
WHEREAS, the City Council finds that the temporary use request meets or exceeds all
applicable development standards and that the approval of the proposal, with conditions, is
consistent with the goals and elements of the Aspen Area Community Plan; 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 BY THE CITY COUNCIL OF ASPEN,
COLORADO,THAT:
Section 1:
In accordance with Section 26.450.020 of the Aspen Municipal Code, the City Council of the
City of Aspen, Colorado, does hereby grant the Aspen Art Museum a temporary use permit to
Resolution No. , Series 2009. Page 1
erect an art installation on the exterior of the Art Museum building which contains neon for the
period of December 10, 2009, through January 31, 2010, plus additional time as may be
necessary for the erection and removal of the artwork.
Section 2:
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 construed and concluded under such prior ordinances.
Section 3:
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 on this day of , 2009, at a duly noticed
public hearing before City Council.
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
John Worcester, City Attorney Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
Resolution No. Series 2009, Page 2
TO:
FROM:
RE:
DATE:
MEMORANDUM
Mayor Ireland and City Council
Chris Bendon, Community Development Director
V111b
Dark Horse Alley Vending Cart Temporary Use Permit — Public Hearing
Resolution No.&, Series of 2009.
October 13, 2009
SUMMARY:
Wendy Smith has applied for a temporary use permit to operate a vending cart in the Ute
City Bank Building this winter. This cart has operated on Cooper Avenue under the
name Dark Horse Alley. Staff and the applicant are requesting a continuation of this
hearing to obtain the necessary owner authorization and to complete the proper noticing
for the hearing.
RECOMMENDED MOTION:
"I move to continue Resolution Noi , Series of 2009, to October 26, 2009."
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
FROM: Chris Bendon, Community Development Director 4M
RE: Lift One Conceptual PUD/Timeshare Review — Public Hearing
DATE: October 13, 2009
SUMMARY:
Tonight's hearing is a continuation from September 28 h. The last meeting focused on the
proposed architecture for the project and gaining feedback on the scale and mass of the project.
Tonight's meeting will concentrate on economic and environmental sustainability of the project,
room sizes, employee needs and affordable housing, pedestrian and traffic movement,
commitments related to historic resources on the site, and ski area and ski racing operations.
At the next hearing, staff will present a proposed resolution for review that incorporates the
direction received to date. Conceptual approvals allow an applicant to apply for final and direct
the applicant as to what changes, studies, specificity, etc. must be included in the final
application. Conceptual approvals typically detail a series of "the final application shall ..."
statements. For example, the recent Aspen Valley Hospital conceptual approval requires the
final application to include a snow storage and snow removal operations plan and a design for
the Castle Creek intersection the incorporates a bus turn -around (among other things).
The resolution for this project will follow along those lines and will describe the components that
are needed for the final application. It is important, however, to keep in mind that a conceptual
approval indicates acceptance of the basic aspects of the project and plan and that the remaining
steps are to focus on the details.
At the conclusion of tonight's meeting, staff will ask Council to continue the hearing to October
26`h, for a continued public hearing.
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
Page 1 of 2
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)
Exhibit E: September 21, 2009, memo from Bob Daniel
CURRENT ATTACHMENTS:
Exhibit F: October 5, 2009, memo from Bob Daniel
Page 2 of 2
MEMORANDUM 1 �x�iihr�
TO: Chris Bendon, Community Development Directd
Mayor Ireland and Aspen City Council Members
FROM: Bob Daniel, Roaring Fork Lodging Company
RE: October 13 Aspen City Council Meeting — Lift One Lodge
DATE: October 5, 2009
Backaround
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 I 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. 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. We also explained access to and from the site, parking, 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 took a walking tour to the site. The
open space/green corridor was walked through the site while noting the footprints of the
buildings and heights.
At the September 28t' meeting we went through the architectural components of the
project and the modifications that have been made since City Council and the community
has seen the Lift One Lodge.
Lift One Lodge Memo to Aspen City Council October 13, 2009
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
• In addition, at that meeting staff will introduce a Draft Resolution to approve the
Conceptual PUD and associated actions.
Residents and the City government have wrestled with the concept of sustainability in a
resort community for several years. There are various ideas and priorities around this
emerging path for the future and the Lift One Lodge has its own ideas on the subject. At
the October 13 meeting, we will present a variety of information that we see as related to
sustainability in a resort community concept.
We do not claim to have all of the answers on this issue, however we wish to share our
thoughts and how our project approaches this issue. We believe that a future -oriented
lodge will address sustainability issues or it will be out -dated prior to completion.
The economic core of our project is fractional ownership and memberships. Our potential
customers are those who have the economic wherewithal to purchase a single family
residence in the City of Aspen or Pitkin County and use it for only eight weeks per year.
Based on our experience at the Roaring Fork Club, we think that we can serve some of
that second home demand in a superior location, with superior amenities, and only build
one unit for every eight purchasers.
We believe that such buyers provide a strong core of visitors who love Aspen and will
return year after year. In combination with availability to the general public, we expect to
achieve higher than average occupancy. High occupancy and bringing growth to a
redeveloped site near existing transit are often considered "smart growth" and
sustainable.
Room Size
We had originally planned to present room sizes at the October 26 Council meeting;
however the Council members have expressed particular interest in this issue so it will be
reviewed during our October 13 meeting.
At our September 14 meeting, we displayed a typical three -bedroom unit configuration,
see below. While there are a variety of configurations and rooms, this drawing
communicates the concept. Using the example of a fractional owner using the one
bedroom suite, the owner would enjoy a 498 sq. ft. bedroom and a combined living room
and dining area of 1,057 sq. ft. In this situation, two lock -off lodge bedrooms could be
Lift One Lodge Memo to Aspen City Council October 13, 2009
rented to the public. One of the lodge bedrooms is 449 sq. ft. and the other is 498 sq. ft.
Over all of the keys combined, the average lodge bedroom size is 526 sq. ft, with 81% of
the lodge bedrooms being 600 sq. ft. or less. The smallest lodge bedroom is 272 sq. ft.
and the largest lodge bedroom is 882 sq. ft. which provides a large amount of flexibility
and diversity of product to be offered to the public when the units are not in use by the
owners.
Emnlovee generation and affordable housing;
The Lift One Lodge will fulfill 100% of its employee housing generation according
formula below. As a part of the presentations to date in the PUD Conceptual Review, the
Lift One Lodge had represented housing 60% of the employees generated on site. With
the increased commitment to fulfill 100% of the employees generated, the Lift One
Lodge will be amending its proposal and housing 40% of the employees generated on
site, with the balance being mitigated off site. An Employee Audit will be performed
during the third year of operation in order to validate the actual generation to code
generation. If the audit finds that actual employment exceeds the generation in this table,
then those employees shall be mitigated.
Lift One Lodge Memo to Aspen City Council October 13, 2009
Employee Generation Calculations
Commercial- Main
5,688 Sq. Ft: 3,374
4.1 per 1,000 Sq. Ft.
9.49
Level
Sq. Ft. credits from
existing commercial
= 2,314 Sq. Ft.
Commercial-
5,621 Sq. Ft.
3.075 per 1,000 Sq.
17.28
Basement/Upper
Ft.
Level
Commercial- Beer,
1,237 Sq. Ft.
4.1 per 1,000 Sq. Ft.
5.07
Boots, Brats
Lodging
90 keys- 38 key
0.5
26
credits from
previous lodges= 52
keys
Free Market- Main
21,731 Sq. Ft.
30% / 700 Sq. Ft.
9.31
and Upper
per Employee
Residential
Total Employees to
67.2
Mitigate
On -Site Affordable Housing
2 Bdrm. 1
2.25 2.25
1 Bdrm. 1
1.75 1.75
Studio 10
1.25 12.5
Dorm 10
1 10
Total Employees
Mitigated On -Site
26.5
40%
Off -site Affordable Housing
The remaining 40.70 employees housing will be mitigated off -site. The Final PUD will
include a description of the type, and delivery of those units.
Pedestrian improvements, Transit, Traffic
Based on our observation of the site over the last four years, current conditions for
pedestrians are poor. The area lacks sidewalks connecting to the town grid and mountain,
even the public park lacks pedestrian amenities. During the winter, pedestrians are forced
to walk in the icy street with vehicles that are frequently struggling to maintain traction.
Lift One Lodge Memo to Aspen City Council October 13, 2009
We are proposing to use our funds and Dancing Bear mitigation funds to reconstruct
Deane St. and provide new sidewalks along Willoughby Park. We would also fund
sidewalks on City land along S. Aspen St. and through the master plan site to the new ski
lift. These connections will complete a previous City plan for improvements between
gondola plaza and Willoughby Park. Pedestrians would enjoy safe access to and through
the lodge, ski area, and park.
Lift I is currently not served by transit and the lack of pedestrian improvements
discourages non -motorized access to the site. The surface lift from Willoughby Park
improves uphill access to lift I and is proposed to be located less than two blocks from
Rubey Park. This will provide viable alternative for driving to the site, particularly for
families with participants in Aspen Valley Ski Club programs.
The Lift One Lodge will use a shuttle system to reduce the demand for vehicles among
lodge guests. That service will operate on an as -needed basis to provide service to the
airport and other locations for lodge guests.
The Lift One Lodge is estimated to generate between $1.0 and $1.5 million in Use Tax
revenue that is targeted for transit service. We had discussions with Assistant City
Manager Randy Ready about whether public transit service would be justified to the
neighborhood. The most cost-effective method to provide service would be to extend the
Cross -Town or Galena St. Shuttle to include a loop through the area. It is unclear whether
the two -block walk from Rubey Park justifies the loop or not. Ultimately, the City
Council will weigh whether this would be the best use for Use Tax funds or whether
other city routes are higher priority.
Complete metrics on the traffic generation, quality of service standard and comparative
analysis will be presented at the October 13t meeting.
Environmental Commitments
Lift One Lodge's environmental commitment began with a design charrette that included
representatives of the Rocky Mountain Institute and Resource Engineering Group (REG).
REG continues to work with the project team on environmental commitments. The
Conceptual level typically involves agreement upon the commitments made by the
project while the Final PUD Application provides the details on how those commitments
will be met. The Lift One Lodge makes the following commitments:
LEED Gold
Upon completion, the Lift One Lodge will submit the documentation necessary
for a project with the points necessary to meet LEED Gold standard for New
Construction. LEED provides a comprehensive and objective standard for
Lift One Lodge Memo to Aspen City Council October 13, 2009
documenting green design and construction. A review of the US Green Building
Council registry did not list any LEED Gold hotels in Colorado. As of April 2009,
there were only four LEED Gold hotels in the world. The Doerr -Hosier Center
and Aspen Middle School have earned that certification locally.
Commissioning
Achieving the gains from high performance buildings is fully realized when the
building is operated to maintain efficiency. Commissioning tests building
operators to insure that energy savings are realized and makes recommendations,
when necessary to operations in order to achieve reductions estimated in the
LEED certification process. During the first twelve months of operation, the Lift
One Lodge commits to independent commissioning of the building.
Reuse of Existing Structures
The Lift One Lodge will relocate and repurpose two existing structures on the
property- the Skiers Chalet Steak House and Skiers Chalet Lodge. The Lodge will
be repurposed as a museum operated by the Aspen Historical Society. The Steak
House will be used for employee housing and a public restaurant.
Historic assets
The Historic Preservation Commission reviewed and granted Conceptual Approval for
the COWOP plan for historic resources in the master plan, which are included in the
amended PUD application. We plan to continue on to Final HPC review based on the
representations made during that review and the amended Conceptual PUD application.
A brief review of historic commitments is offered:
• Lift One- applicant will rehabilitate structure and towers to reduce impacts from
weather damage over the last thirty years. Details of work are to be determined as part of
Final HPC review.
• The HPC had strong input regarding the restoration of a ski corridor through the site
connecting the historic lift to the mountain. A September 24, 2008 memo from Historic
Preservation Planner Sara Adams to the HPC Board states:
"Because it is no longer functional, the preservation of Lift I relies on maintaining
its integrity and authenticity through its direct connection to the ski hill and its
surrounding passive and relaxed environment. On August 27th, HPC members
indicated that the visual connection and the ability to ski back to the base of Lift 1
are high priorities for them in this project. There were several comments made
about the importance of being able to stand at the chair and look up the historic lift
line. In response to HPC, the applicant proposes a POMA lift to run parallel to the
Lift One Lodge Memo to Aspen City Council October 13, 2009
historic Lift 1. Staff finds that this idea would reconnect the historic lift to the
mountain and allow a more interactive and animated experience of the historic lift."
• Skiers Chalet Steak House - The HPC supported the relocation, rehabilitation, and
repurposing of the Steak House.
• Skier Chalet Lodge- while not a historic landmark, the Lodge is on the Ordinance 48
list. The HPC supported the relocation, rehabilitation, and repurposing of the Lodge as
part of an Ordinance 48 review for the structure. The applicant agrees to propose historic
designation of the structure after it has been relocated, rehabilitated, and repurposed.
• Outhouse- the applicant agrees to rehabilitate the structure.
Skiin¢ & Ski Racine
Skiing and racing are important aspects of the site and master plan. We are responsible
for working with the Aspen Skiing Company to implement a new lift I that increases
capacity and reduces the lift travel time. In addition, a surface lift will be provided from
Willoughby Park to an area near the new IA. The skiers will take an approximately one -
minute ride on this surface lift from the Deane St. area to the new lift. In February 2009,
the Colorado State Tramway Board granted a variance required to implement the surface
lift proposed in this amended PUD.
These two new lifts represent several million dollars in ski area improvements- creation
of the "town lift' and improving lift service from IA. The specific lift technologies will
be presented as part of the Final PUD application.
Our team has worked with Skico planners and Aspen Mountain staff to understand 1 A
operations and needs. The PUD plan provides lockers, an employee lounge, and ticketing
within the Lodge in order to improve working conditions for Skico staff. The
improvements at the base provide improved access for emergency vehicles and patrol
personnel delivering injured skiers. The improvements also provide improved access for
disabled skiers.
We have also met with Wintemational and racing staffs in order to understand the needs
of major and ongoing ski racing. The Lodge apres ski deck will provide a viewing
platform and site for festivities related to Winternational and other racing events. We
have also met with the Aspen Valley Ski Club to identify opportunities to incorporate
training and race -related programs into lodge facilities.
Lift One Lodge Memo to Aspen City Council October 13, 2009
3
CAMERA -
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BIG SCREEN -
TELEVISION
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ACE FINISH ZONE/
TRAILERS
TENT
5TH AVENUE
CAMERA STAND
GENERATOR
STORAGE
NORWAV
SLOPE
COWOP
BOUNDARv
-PORTABLE
RESTROOMS
An additional Winternational issue that was researched and addressed is related to
television trucks and cables from Deane St. to the race area. We met with Jim Hancock,
Chief of Race for the Winternational, and spent time on site during the race in order to
better understand Winternational operations. On -mountain operations and the racing
course are not impacted by the proposal. The PUD plan provides parking for the
television trucks and cabling route to the race site. As with current practices, Deane St.
will be temporarily closed during the race.
Councilman Torre specifically asked about ski lift alternatives that were considered in
master planning. The other Council members were either part of the COWOP task force
that studied alternatives or were on Council when those alternatives were discussed in the
prior review. The COWOP task force did an exhaustive study of alternatives that to
Lift One Lodge Memo to Aspen City Council October 13, 2009
increasing accessibility and activity in the area during all four seasons; including transit,
lifts, funiculars, escalators, underground roads, and other technologies in various
locations.
The SE Group, leaders in North American ski area planning, was brought in to provide
independent technical expertise along with Aspen Skico planning staff. The result was a
plan that provided safe skiing and lift service to the area. COWOP members explored a
variety of alternatives and components and voted on which ones were worthy of
advancing for additional study. Some alternatives were dropped after "bubble" level
analysis while others advanced to a level of analysis that included more detailed review
and massing of buildings. The resulting plan of a surface lift from Deane St. that would
provide access to the relocated repeat skiing lift was a solution that not only met the
technical requirements of service, but also provided lift access that was in scale with the
demand and existing historic resources. The COWOP embraced this solution as a part of
their approval of the overall ski improvements that were part of the master plan.
Council Direction Desired
The October 26 City Council meeting is expected to address the technical requirements
involved in Conceptual PUD review and staff plans to introduce a resolution for
Conceptual approval. Our team has tried to respond to Council questions, comments, and
directives as best we can. We would appreciate clarity around any additional Conceptual
PUD information needs so that we can provide them at the October 26 meeting.
Lift One Lodge Memo to Aspen City Council October 13, 2009
4a.
1, Lift One Lodge
poss
10.13.09
I
RESORT OOMMUNIT�
Doi tiR -
Master Plan Goals -... 10.13,09
p O g g Lift One Lodge I
Humanity has the ability to
make development sustainable
to ensure that it meets the V
needs of the present without
compromising the ability of
future generations to meet their
own needs.
vrd
REsoRT Gommor's
Energy Office
Sustainatiility
Cay of A5REN
CANARY IMMiNE
SS Lift One Lodge
Master Plan Vision 10.13.09
Po$S Lift One Lodge 1
Economic
Provides capital to fund project, pay for
community benefits, & chance for return on
investment.
Build & Operate strategy for long term return.
High Occupancy Rooms
Sustainability of
Lift One Lodge i -
Meeting demand for part-time ownership in
central location. One unit = 8 owners.
Environmental
4400 sq ft second home heating/lighting= 44
tons CO2
Staff adds another 2-3 tons
Average Aspen condo= 16 tons
Significantly less impact
Sustainability of Lodging 10.13.09
puss Lift One Lodge M
Social
of
Skiing Improvements
Historic Investments
Public Amenities
Public Guest Rooms
Lift One Lodge
Lodge Rooms
Variety of rooms sizes:
Smallest-270 sq. ft.
Largest- 882 sq. ft.
Average- 526 sq. ft.
87% less than 600 sq. ft.
Sustainability of Lodging: Economic 101 09
Puss Lift One Lodge
Lodge Rooms
E
i498 S. 449 s.f -7 �' 498 S.f.
nr
Y
1 uq O
Sustainability of Lodging: Economic 101309
PUSS Lift One Lodge 17
Lodge Membership:
Operation
14 nights in summer (6/1 - 9/30; 121 nights)
14 nights in winter (12/1 - 4/10; 131 nights)
Available time in shoulder season
No ownership in a specific unit
8 memberships per suite= 216 memberships
Right to rent unoccupied keys
Sustainability of Lodging: Economic 10.13.09
POSS Lift One Lodge I1
Public Availability:
Jperation Key -nights not reserved by members
+ Key -nights not used by members*
Total key -nights available to public
* ARDA Statistics show 80-85% usage by
Owners
of Lodaina: Economic
Lift One Lodge
Public Availability:
Operation
Use Plan means 20 keys will be available for
public rental on a typical night during winter
and summer season
Will be listed with Stay Aspen Snowmass, etc.
Operator and owner a financial interest in
renting those rooms
Sustainability of Lodging: Economic / Social 10 13 09
pass Lift One Lodoe
100% Employee Housing Mitigation
40% on -site
Employee Housing
—
Unit Type
Amount
Employees
/Unit
Employees
Housed On -
Site
Sustainability of Lodging: Social
101309
puss
Lift One Lodge)
2 Bdrm.
1
2.25
2.25
1 Bdrm.
1
1.75
1.75
Studio
SO
1.25
12.5
Dorm
10
1
SO
Total
Employees
26.50
Mitigated
(40%)
Accessibility
of Lodging: Social
New sidewalk along Deane St. (Rubey Park)
New sidewalk along Aspen St.
Access to neighbors
Summer pedestrian corridor to mountain
Potential transit stop at Deane St. and Aspen St.
Emergency access at top of street
Lift One Lodge
Traffic No change in LOS at affected intersections
Lift One Lodge, restaurants, museum, ski drop
off generates total of 109 trips on Aspen St. S. of
Durant during am peak. 151 during pm peak.
< 2 vehicles per minute in am
< 3 vehicles per minute in pm
Sustainability of Lodging: Environment
pass Lift One Lodge I
rraffic No change in LOS at affected intersections
New uses plus existing trips plus other approved
growth
+/- 3 vehicles per minute in am
+/- 4 vehicles per minute in pm
of Lodging: Environment
Redevelopment of infill site
LEED Gold
Environmental Commissioning, Measurement & Verification
Repurposing existing structures
Sustainability of Lodging: Environment
Lift One Lodge
Lift One Lodge
Rehabilitate Lift One (National Designation)
Rehabilitate & Repurpose Steak House (Local
Historical Assets Landmark)
Rehabilitate & Repurpose Lodge (Ord. 48)
Stabilize Outhouses
Re-establish Corridor & Lift Served Skiing
of Lodqinq: Environment / Social
Lift One Lodge
Racing:
r
Improved Facilities ---,
Improved Viewing
No Impact to Course
Racing / Skiing
Sustainability of Lodging: Social / Economic 10.13.09
Poss Lift One Lodge I]
Skiing:
Two New Lifts
Apres Ski.;..
Lockers
Underground parking
Racing / Skiing
Skico Ticketing and Patrol facilities
AVSC Bus Access
Sustainability of Lodging: Social / Economic / Environment
poss
Lift One Lodge
10.13.09
Lift One Lodge I