HomeMy WebLinkAboutresolution.council.063-20 RESOLUTION #63
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND GUERDON LLC AUTHORIZING THE CITY MANAGER TO EXECUTE
SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a Supply
Agreement between the City of Aspen and Guerdon LLC, a true and accurate copy
of which is attached hereto as "Exhibit A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the Supply
Agreement between the City of Aspen and Guerdon LLC, a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager to execute said Supply Agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 28th day of July, 2020.
Torre, Mayor
I, Nicole Henning, 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 July 28, 2020.
Nicole Henning, City Clerk
r., GUERDON
This Supply Agreement (this "Agreement") is entered into on July 28, 2020, by and between
Guerdon,LLC, a Delaware limited liability company, located at 5556 S Federal Way, Boise, ID
83716 ("Guerdon") and City of Aspen ("Purchaser"), (each a "Party" and collectively, the
"Parties"). In consideration of the terms and mutual promises contained herein, the Parties agree
as follows:
1. Sugplier Designation. Purchaser designates Guerdon as the manufacturer of the Modular
Units for the Project,consisting of(8)Buildings to be constructed on property of the City of Aspen,
known as Burlingame Phase III, and identified within The Plans: Completed After the Effective
Date: Approved by Architect of Record (AOR) (Exhibit C) (hereinafter the "Project"),subject to
the terms of this Agreement.
2. Notice to Proceed. This signed Agreement shall constitute Purchaser's Notice to Proceed
with the Project according to the Milestone Production and Delivery Schedule (Exhibit H).
3. Milestone Production and Delivery Schedule. The Modular Units shall be produced and
delivered pursuant to the Milestone Production and Delivery Schedule ("Schedule") (Exhibit H).
The critical path milestones require a five (5) business day response time for requests for
information directly affecting the milestones in the Schedule. Parties shall notify each other in
writing of any delays and the Schedule will be adjusted accordingly. Any delay in the dates or
timelines may represent a delay in the critical path milestone schedule and may result in an
adjustment to the Schedule of one(1)day for each day of such delay.Parties acknowledge that the
Schedule may be amended upon the mutual written agreement of the Parties. Any delivery delay
of three (3) days or more by Guerdon, through no fault of Purchaser, shall require Guerdon to
develop a recovery plan issued to the City within three(3)days that shows a return to the baseline
schedule within fourteen(14)days of issuance.
4. Manufacturing; Guerdon shall manufacture Modular Units free from material defects and
consistent with the approved Plans(Exhibit C),Product Specifications(Exhibit A), and Cosmetic
Standards. One Modular Unit is defined as a single unit of production, which is also a single
transportation load. One Living Unit is equal to one key or one suite. The Modular Units will be
supplied by Guerdon for the construction of the Project. This signed agreement shall constitute
Purchaser's notice to proceed with the production scheduling and planning for each Phase; and(i)
the Parties shall execute an amendment to this Agreement directing Guerdon to produce the
Modular Units to be used (hereinafter the "Building Amendment"); (ii) Developer shall make the
cash deposit to Guerdon, in the amount and in accordance with the timing specified in the Deposit
and Payment Schedule(Exhibit E)attached hereto and incorporated herein by reference,required
for the production of such Modular Units; and (iii) Purchaser shall pay the remaining balance of
the Supply Agreement Price of such Modular Units(net of the cash deposits with Guerdon actually
made by Purchaser for such Modular Units) as provided in such Building Amendment and the
Deposit and Payment Schedule (Exhibit E). The first Building Amendment and the Deposit for
such Amendment shall be executed and delivered within seven (7) days of the Effective Date
hereof.
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r., GUERDON
Project Burlingame Ranch Phase IIB(aka Phase III)
Physical Address of the Project 40-225 Paepcke Drive, Aspen, CO 81611
the"Project Site"
Project Buildings Buildings#8-15 (8 Buildings)
Living Unit(s) (79)
Modular Unit(s) (120)
5. Drafting and Engineering Services. Guerdon shall provide engineering services pursuant
to the Scope of Work (Exhibit G). Guerdon reserves the right to subcontract third-party
engineering services. Guerdon agrees to use the appropriate level of effort, skill,judgment,ability
to produce the modular construction documents.
6. Purchaser's Engineering Responsibilities. Purchaser shall be responsible at its expense for
any engineering services not included in Guerdon Scope of Work (Exhibit G) and Product
Specifications (Exhibit A). Purchaser shall pay directly or reimburse Guerdon for any expenses
incurred by Guerdon to correct any manufacturing or any expenses associated with repair of
defective manufacturing that the Parties agree,acting reasonably,is the result of errors,omissions,
or failure not caused by Guerdon.In the event the Parties are unable to agree as to the cause of any
defective manufacturing, such disagreement shall be determined through the dispute resolution
process in accordance with Section 30.
7. Model Unit. Guerdon shall manufacture two (2) Modular Unit(s), which shall be stacked
one atop the other, for the Project for review and approval before the full production run, which
Modular Units will be used in the Project. Guerdon and the Purchaser or Purchaser's
representatives shall use the Model Unit(s)to approve: (i) Cosmetic Standards, (ii)waterproofing
details for exterior doors, windows, penetrations, exterior membranes and wraps, (iii) American
with Disability Act (ADA) Standards compliance if applicable, (v) Mechanical, Electrical and
Plumbing(MEP),and floor/ceiling sound and noise transmission(STC, IIC).
8. Inspections.
a. For the purpose of state of Colorado building permits, the Third-Party Inspector
shall inspect the Modular Units for state building code compliance on behalf of the
state of the Project Site. When the final Mechanical,Electrical,and Plumbing tests
have been performed and observed, and any Quality Assurance / Quality Control
deficiencies noted by the Third-Party Inspector have been corrected, the Third-
Party Inspector shall issue the modular label or insignia to that Modular Unit.
Guerdon shall be solely responsible for the costs of the Third-Party Inspector.
b. For the purpose of any additional inspections or testing required by Purchaser, the
Purchaser's Inspector shall be a qualified building inspector or engineer acting as
an authorized agent for the Purchaser, who is authorized to accept Modular Units
on behalf of the Purchaser. Purchaser's Inspector shall inspect the Modular Units
as specifically directed by the Purchaser or the Purchaser's Architect of Record for
conformity with the Plans (Exhibit C), Product Specifications (Exhibit A), and
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Cosmetic Standards as represented in the Model Unit(s). The Purchaser shall.be
solely responsible for the costs of the Purchaser's Inspector. Purchaser's Inspector
shall operate and conduct its inspections as an independent third-party without
autonomously modifying the previously agreed production specifications.
i. Guerdon shall present the Modular Units to Purchaser's Inspector at the
factory for pre-shipment inspection. The Purchaser's Inspector shall then
have up to five (5) business days to perform such inspection. The
Purchaser's Inspector will provide Guerdon a written inspection report per
Modular Unit,the Modular Unit Conformance Sign-Off(Exhibit K),which
shall list any deficiencies and/or shortages. Guerdon shall promptly repair
any items that do not comply with the Plans, Product Specifications,
Cosmetic Standards and present such Modular Unit to the Purchaser's
Inspector for acceptance. After re-inspection, the Purchaser's Inspector
shall denote acceptance of the correction by initialing the Acceptance
column of the Modular Unit Conformance Sign-Off form.The Parties agree
that the only items which shall be listed as deficiencies and are cause for
repair by Guerdon will be missing or incorrectly installed parts per the
Product Specifications and unauthorized deviations from the Plans or
Cosmetic Standards. If the Purchaser's Inspector does not inspect the
Modular Units within the five (5) business day inspection period, and the
Parties do not agree in writing to schedule such inspection at a later date,
Purchaser shall be deemed and construed to have waived its right of
inspection for those specific Modular Units. The Modular Units will not be
shipped until(i)all payments due pursuant to Section 17 have been paid by
the Purchaser; (ii)the Purchaser or the Purchaser's Inspector has inspected
the Modular Units,or waived its right to inspect the Modular Units;and(iii)
the Purchaser or the Purchaser's Inspector has signed the Modular Unit
Conformance Sign-Off form.
c. Drywall Cracks and Nail Pops: Slight movement or shifting in the structure may
still occur during delivery and installation. Drywall cracks and nail pops will occur
in the Modular Units, particularly at high stress points (i.e. at the corners of large
windows and door openings),which will require drywall repair and paint touch-up
or entire wall repainting. Repairing these cracks and nail pops is the responsibility
of the Purchaser, specifically excluded from the Warranty, and will not be cause
for failure to accept the Modular Units outlined above. Guerdon does not repair
minor stress cracks that occur when Modular Units are placed on chassis or cribs
because these areas will most likely crack again during delivery and installation,
which will be more difficult for Purchaser to repair as a result of the first repairs.
9. Fire Suppression. Purchaser shall contract the fire suppression system work as required by
code and identified in the Product Specifications (Exhibit A) or Scope of Work (Exhibit G),
including, but not limited to, the design, stamped plans, drawings for final approval, and the
installation of the fire suppression system both in the Modular Units during production in
Guerdon's factory and at the Project Site.
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a. Purchaser will select and engage the fire suppression system work to install the
system with adequate lead time and without causing a delay to the Schedule.
Purchaser is responsible for any delays in selecting the contractor or resulting from
the performance of the work. The Purchaser is responsible at its expense for all
suppression and fire alarm system(s)installation and testing. The Purchaser and its
contractors hereby indemnify and hold Guerdon harmless for any damage resulting
from any failure or malfunction of such fire suppression and/or fire alarm system(s)
during or after completion and construction of the Project unless such damage is
wholly attributable to the acts of Guerdon.
b. Guerdon shall, subject to the confidentiality and nondisclosure provisions of this
Agreement,provide copies of Guerdon's production drawings and any other readily
available information to enable the contractor to complete its design and
installation. Guerdon will coordinate the material handling and installation of the
fire suppression and/or fire alarm system(s)for the production process,advising the
contractor when the system(s) must be installed, and permitting the contractor to
install the factory portion of the fire suppression and/or fire alarm system(s)during
agreed upon times and dates.
10. Transportation Services. Guerdon shall provide the following Transportation Services,
which are identified in the Supply Agreement Price as an Allowance and subject to the provisions
of Section 16.a.i. for Transportation Allowance Adjustment:
a. transport the Modular Units from the factory or factory storage location to the
designated on-site staging or storage location;
b. transport the Modular Units from the factory to the factory storage location in
Boise, ID, for temporary storage at Guerdon's expense, if required.
The transportation carrier(s) shall maintain all licenses, permits, and insurance coverage per
Insurance(Exhibit I). Modular Unit delivery to the Project Site or designated storage site shall be
deemed Purchaser acceptance for the purposes of substantial completion by Guerdon under this
Supply Agreement and as satisfaction of the condition of the bond for release of the surety under
the Supply Bond.
11. grjb . Guerdon places Modular Units on cribs until the transportation carrier loads the
Modular Units onto lowboy trailers. Cribs are wood supports used to store a modular unit off the
ground and approximately thirty-six inches high.
a. Purchaser shall provide cribs,as identified in the Scope of Work(Exhibit G),at the
on-site staging or storage area to receive any Modular Units transported on lowboy
trailers.
b. In the event that Guerdon choses to transport on Guerdon owned chassis, return
costs will be added to the Transportation Allowance and executed via change order
pursuant to Section Mad. Purchaser shall be responsible for damage to chassis that
occurs while chassis are in Purchaser's possession.
12. On-Site Construction. Purchaser acknowledges that substantial on-site construction work
is required to complete the Project, both before and after the Modular Units have been delivered.
Guerdon has no obligation or responsibility for the performance of on-site construction services
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of any kind except those specific Site Services identified in the Scope of Work (Exhibit G).
Purchaser shall be solely responsible at its expense for obtaining site permits and completing any
required on-site inspections. Purchaser shall be responsible at its expense for the costs of on-site
repairs or modifications required by Purchaser or local building officials which are not identified
in or are contrary to the Plans (Exhibit C), Product Specifications (Exhibit A), and Cosmetic
Standards. Guerdon shall assign an experienced Site Supervisor to the Project to provide technical
advice and assistance to the general contractor and their sub-contractors to correctly complete the
installation, structural connection and systems connection of each building. This individual will
be on site during the installation and structural connection and during any periods where critical
work is performed for which Guerdon is responsible.
13. On-Site Staging and Storage. Purchaser shall provide and pay for any related costs to
receive the Modular Units at the storage site including but not limited to, storage location leases,
labor,materials, insurance, safety, and security.
14. Supply Agreement Price. The Supply Agreement Price (Exhibit D) shall be fixed except
for agreed Change Orders (Section 16). The pricing schedules for each Building are attached as
Building Amendment(Exhibit D). The Supply Agreement Price shall be subject to revision if the
Schedule is delayed more than thirty (30)days for reasons beyond the control of Guerdon.
15. Taxes. Purchaser shall be responsible for all sales, use, and any other taxes and fees
applicable to the purchase and/or installation of the Modular Units at the Project Site city and state.
Guerdon will collect such taxes from the Purchaser and will remit taxes to the appropriate taxing
authorities. If any of the tax rates applicable to this Agreement change at any time after the
execution of the Agreement, and such changes are required by the taxing authorities to be
applicable to the taxable amounts of the Supply Agreement Price (Exhibit D), such changes will
be handled between the Parties as an Allowance (Section 16.a.) The parties acknowledge that
Purchaser is a governmental entity that is exempt from Colorado and other state and local taxes.
16. Change Orders. Purchaser agrees that any changes, amendments and/or alterations to the
Agreement (hereinafter "Change Orders") must be agreed to and approved in writing by both
Parties. Guerdon agrees that it will not perform any work, purchase any materials or otherwise
incur any additional costs that may result in a Change Order until Purchaser approves the Change
Order Request. Guerdon shall supply line item costs for each Change Order Request for review
and written approval by Purchaser. Change Order Requests initiated by Purchaser which increase
cost to Guerdon shall include fifteen percent (15%) markup for overhead and profit, plus any
applicable taxes. Change Order Requests initiated by Guerdon shall include zero percent (0%)
markup for overhead and profit, plus any applicable taxes. Purchaser has specific City Council
approval requirements for Change Orders of $50,000 or greater. Change Order Requests in
amounts of$50,000 or greater shall be required to note the pending City Council approval date.
This should be coordinated with Purchaser and may be longer than 5 days.Otherwise,if Purchaser
does not provide written approval of the Change Order Request within ten (10) business days,
Guerdon shall abandon the Change Order Request and continue to manufacture the Modular Units
without incorporating Change Order Request changes. All approved Change Orders shall become
a payment obligation of Purchaser. Change Orders shall be paid directly within thirty (30)days of
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receipt of invoice. Any dispute regarding the costs related to a Change Order Request shall be
resolved in accordance with Section 30. If the Parties dispute the amount of any Change Order,
yet Purchaser still requests Guerdon to proceed with the specific item(s) listed in the disputed
Change Order, Purchaser shall promptly pay to Guerdon the value of the disputed Change Order
and Guerdon shall promptly proceed to incorporate the disputed items) into the Modular Units.
Upon resolution of the dispute, Guerdon and Purchaser shall reconcile the agreed upon amount
and adjust the disputed amount according as agreed. At no time during a dispute of any Change
Order between the Parties shall Purchaser withhold,delay or cause to be delayed any payment due
to Guerdon pursuant to Section 17. Purchaser and Guerdon agree that any changes payable to
Guerdon shall be adjusted only as follows:
a. Allowances. Any item listed as an Allowance in the Supply Agreement Price
(Exhibit D) shall be adjusted upward or downward for any difference in the actual
cost of such item compared to the Allowance upon the final determination of such
cost.
i. The Transportation Allowance Adjustment. At least ten (10) days before
initiating transportation, Guerdon shall request updated quotes from the
transportation carrier(s) and adjust the Transportation Allowance if
necessary. Any increase in the Transportation Allowance shall be invoiced
and paid by the Purchaser in advance of transportation of the Modular Units.
Within sixty(60)days of delivery of the last Modular Unit,or chassis return
if applicable, Guerdon shall prepare a summary of the total Transportation
Services costs with supporting copies of the transportation carrier's invoices
and compare those total costs to the Transportation Allowance. If actual
costs incurred by Guerdon are greater than or less than the Transportation
Allowance, the Purchaser shall approve an additive or deductive Change
Order for such amount. See Section 10 for additional information on
Transportation Services.
b. Materials Cost Adjustment. Guerdon and Purchaser shall agree to adjust the Supply
Agreement Price if material costs increase or decrease more than 2% of the
estimated purchase price between the Effective Date of this Agreement and the time
materials are invoiced. In the event the price of certain specific materials(including
HVAC equipment, finish material, appliances, windows, countertops, structural
steel) increases by more than 2% between the date of this Supply Agreement and
the date of installation (or purchase by the Guerdon, the Supply Agreement Price
shall be equitably adjusted by the amount which exceeds a 2%price increase over
the specific material's baseline price. The equitable adjustment shall be made by
Change Order in accordance with the procedures set forth above. To facilitate
substantiation of material cost changes of more than 2%, Guerdon shall furnish an
Exhibit to this Agreement which details all estimated material costs for which this
specific material change is to be considered. At the time materials are invoiced,
Guerdon shall furnish an update to the materials cost Exhibit which details all actual
material costs for these specific items. Any claim for increase or decrease to
material costs greater than 2% must have a basis in the materials cost Exhibit,
otherwise such claims shall be invalid.
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c. If materials must be expedited at no fault of Guerdon to meet the production
schedule, expedite fees will be passed on to Purchaser.
d. Delay Adjustment. Guerdon may adjust the Supply Agreement Price to recover any
additional Project costs, losses, or expenses incurred by Guerdon resulting from a
delay pursuant to Section 14 above.
e. Storage Fees. Storage fees shall apply to each Modular Unit stored in Boise,Idaho,
after forty-five (45) days from Ready to Ship date. For each Modular Unit stored
from forty-six(46)to sixty(60)days,Purchaser shall pay two hundred fifty dollars
($250.00). For each Modular Unit stored from sixty-one (61) to ninety (90) days,
Purchaser shall pay five hundred dollars($500.00). For Modular Units stored more
than ninety(90)days,Purchaser shall pay seven hundred fifty dollars($750.00)per
month per Modular Unit for each month after 90 days. Storage fees shall not apply
to Modular Units completed ahead of schedule.
17. Pa men . Guerdon shall invoice Purchaser and Purchaser shall pay Guerdon in US dollars
for amounts due under this Agreement as set forth in the Deposit and Payment Schedule (Exhibit
E),plus any Change Orders pursuant to Section 16.In the event Purchaser does not pay any amount
due Guerdon within ten (10) business days of the due date, Guerdon shall not be obligated to
continue work until such amounts due are paid. Guerdon shall not be responsible for any delays
caused thereby.
18. Intentionally omitted.
19. LiM With each payment application, Guerdon shall provide conditional and
unconditional lien releases and/or waivers in a form acceptable to Purchaser.Guerdon reserves the
right to file and maintain mechanics' liens until all payments for such Modular Units are made
current.
20. Licenses and Permits. Purchaser and its contractors and/or subcontractors shall maintain
all licenses, building permits, and/or other documentation and certifications required by law for
purposes of development and construction of the Project. Guerdon and its subcontractors shall
maintain all licenses, permits and/or other documentation and certifications required by law for
purposes of providing services according to the Scope of Work(Exhibit G). Guerdon agrees to be
responsible at its expense for all codes and manufacturing items related to the construction of the
Modular Units which are specifically identified in the Plans, Product Specifications, Cosmetic
Standards,as reviewed,redlined,and approved by the Purchaser's Architect of Record.
21. Insurance and Bonding.
a. The Parties shall provide insurance as more fully defined in Exhibit I. The Project
Specific Liability Insurance Policy will we bound by Guerdon and the policy will
remain in effect until the Project is completed or is put to its intended use,
whichever is earlier.Purchaser shall inform Guerdon within five(5)days of Project
completion or use. In the event the policy must be extended,Purchaser shall notify
Guerdon at least thirty (30) days in advance of policy expiration and shall pay the
extended policy premium within ten(10) days of invoice date.
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b. Guerdon shall deliver to Purchaser supply bond ("Supply Bond") in accordance
with the provisions of this Section 21.b.
1. The Supply Bond shall be issued by United Fire & Casualty
Company, Cedar Rapids, IA, AM Best Rating A XI (the "Surety")
and attached hereto and incorporated herein as Exhibit N. The
Supply Bond shall be issued upon the execution of each Building
Amendment. The Supply Bond shall be for 100% of the Supply
Agreement Price and the aggregate obligation of the Surety for the
Supply Bond shall not exceed such amount. Each Supply Bond
Premium shall be 1.25% of the Supply Bond amount. The Supply
Bond Premium shall be paid by Guerdon within ten(10)days of the
Supply Bond effective date. The Supply Bond shall only cover
Guerdon's manufacture, supply and shipment of the Modular Units
to the staging area or designated off-site storage area.
ii. Purchaser hereby acknowledges and agrees that the Supply Bond shall not
cover or insure:
1. Guerdon's warranty obligations,or
2. any on-site construction or installation work or services to be
performed by Guerdon under any contract or agreement, including,
but not limited to, work and services described or referred to in
Guerdon's Scope of Work(Exhibit G), or
3. any cosmetic claims or adjustments asserted after the modular units
have arrived at the Project Site.
iii. Purchaser hereby covenants and agrees that Purchaser shall not submit or
assert any claims or demands to the Surety under the Supply Bond or
otherwise for matters covered by Guerdon's Warranty or for matters arising
out of or in connection with Guerdon's on-site construction or installation
services performed under this Agreement or any other agreement.
iv. The Parties acknowledge and agree that with respect to Guerdon's
obligations under this Agreement except for its warranty obligations, such
obligations covered and insured by the Supply Bond shall be fully satisfied
and discharged upon the occurrence of Guerdon's delivery of each Modular
Unit to the staging area or Purchaser's designated off-site storage area as
near as possible to the Project site. If Purchaser has not made available the
staging area or a designated off-site storage area by the time the Modular
Units are Ready to Ship, as defined in Section 8.b.i.,then the Supply Bond
shall be deemed to be fully satisfied.
22. Confidentiality.The Parties acknowledge that certain information and materials,including
drawings, designs, Modular Unit costs, , test data, test assembly report, Product Specifications
(Exhibit A), Cosmetic Standards, and construction means and methods (Confidential Materials)
represent confidential and proprietary property of Guerdon. The Parties agree to use all
Confidential Materials received from the other Party only with its employees, owners, affiliates,
subcontractors, providers of professional services, and building officials for the building permit
application process.The Parties further agree to take all necessary steps to ensure that the materials
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or any copies thereof are not made available to any person or to any employee of any competitor
of the other Party, and shall not be used for the production or design of other projects without the
express written authorization of the other Party. Notwithstanding the above, this Section does not
apply to information required to be produced pursuant to legal process, including but not limited
to the Colorado Open Records Act,(CORA)C.R.S. Section 24-72-200.1,et seq.,or that is readily
available from other available sources and/or is deemed to be in the public domain.
23. Promotional Permissions. Guerdon retains the right to display a promotional banner
including the Guerdon Logo and company contact information in a highly visible location at the
Project Site throughout the duration of construction, so long as such is in compliance with all
applicable provisions of the Aspen Municipal Codes, including the Aspen Land Use Code.
Guerdon and its affiliates, successors and assignees retain the right to access the Project to
document all stages of the construction process using photography, videography, and sound
recordings for the purposes of producing promotional materials. All rights to the content captured
and materials made in connection with this documentation shall be the property of Guerdon
including, without limitation, the perpetual right and license to use and re-use said content for
promotional purposes, with the prior written approval of Purchaser.
24. 'Warranty. Guerdon shall provide a Two (2)Year Limited Warranty(Exhibit F) applicable
to the Modular Units from the date Modular Units are Ready to Ship pursuant to Inspections
Section 8.b.
25. Title. Guerdon guarantees to Purchaser that upon delivery to the Project Site and
Purchaser's payment in full to Guerdon, such Modular Units will be free and clear from all liens,
claims and encumbrances;and Purchaser shall have good and marketable title to and the exclusive
right to possess and use the Modular Units.
26. Termination. The term of this Agreement shall begin on the effective date and, unless
sooner terminated as provided herein,shall continue in full force and effect through the completion
of the Scope of Work (Exhibit G) and receipt of final payment, except for warranty service as
defined in the Warranty (Exhibit F).Termination of this Agreement, with the exception of neglect
of duty or failure to perform under the terms of this agreement,shall not relieve either Party of any
rights and obligations arising under this Agreement and incurred prior to termination, and such
rights and obligations shall survive termination of this Agreement. All orders received and under
production by Guerdon prior to the date of Purchaser's written notice of termination of this
Agreement shall be fulfilled in accordance with this Agreement, and Purchaser shall pay all
amounts due for such orders whether or not the date of the work or the delivery of the Modular
Units covered by such orders occurs after the date of termination.
27. Event of Default. In the event either Party breaches any of the terms or conditions of this
Agreement ("Event of Default"), and if Defaulting Party fails to correct or cure the condition
within ten(10) business days after receipt of the written notice of Default,then the non-defaulting
Party without prejudice to any rights or remedies otherwise available to it, shall have the right to
do any of the following:
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a. Terminate this Agreement providing at least thirty (30)days prior written notice of
termination. Any such termination notice shall be deemed to have been withdrawn
by the non-defaulting Party if the defaulting Party cures the Event of Default prior
to the termination date.
b. If any monetary Event of Default by Purchaser has not been cured within ten(10)
days of Purchaser's receipt of written notice default interest on the delinquent
payment will accrue at a rate of eight percent (8%) per annum from the date of
receipt of the notice of default. If a monetary Event of Default, other than a
monetary Event of Default subject to a good faith dispute by Purchaser, continues
beyond the termination date,Guerdon may retain any non-refundable deposits,and
sell any Modular Units to any third-party for a commercially reasonable sales price
acceptable to Guerdon. Guerdon shall apply the proceeds of such sale to the unpaid
balance due Guerdon for such Modular Units and Purchaser shall remain liable for
all payments and/or any balance due for all Modular Units that have been ordered
and produced and any other costs and expenses incurred by Guerdon for the Project.
c. In the event of termination of this Agreement due to a monetary Event of Default
that is not cured by the termination date, notwithstanding anything else set forth
herein to the contrary, Guerdon shall not be required to accept new orders or
commence production of any orders not commenced at the time of such termination
due to such monetary Event of Default.
d. Notwithstanding the foregoing, in the event of termination of this Agreement due
to any occurrence other than a monetary Event of Default by Purchaser that is not
cured by the termination date, the rights and obligations of the Parties under this
Agreement shall continue as provided above if there exists a dispute between the
Parties with respect to such other occurrence and the appropriateness of the
termination until the dispute is determined and resolved in accordance with Section
30 of this Agreement.
28. Indemnification. To the fullest extent permitted by law, with respect to any and all claims,
suits, injuries,causes of action,damages, losses and expenses, including attorney's fees and costs
(collectively "Claims") arising from or out of this Agreement, a Party whose material breach of
this Agreement or whose negligence gives rise to such Claims, shall defend, indemnify and hold
harmless the non-breaching and/or non-negligent Party. Party as used in this Section shall mean
and include the officers, directors, agents, employees,and successors of each Party.
29. Claims for Consequential Damages. Purchaser and Guerdon waive claims against each
other for consequential damages arising out of or relating to this Agreement. This mutual waiver
includes:
a. Damages incurred by the Purchaser and/or Guerdon for rental expenses, losses of
use, income,profit, financing,business and reputation and for loss of management
or employee productivity or of the services of such persons; and
b. Damages incurred by the Purchaser and/or Guerdon for principal office expenses
including the compensation or personnel stationed there, for losses of financing,
business and reputation, and for loss of profit except anticipated profit arising
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directly from each Party's performance of their obligations pursuant to this
Agreement.
30. Dispute Resolution. The Parties mutually agree to make a good faith effort to resolve any
disputes or disagreements through direct discussion and negotiation. In the event that agreement
cannot be reached thereby,either party may request Mediation by giving written notice to the other
Party, and the Mediation shall be scheduled within thirty (30) days of such written request. The
Parties agree to attempt to resolve all disputes,claims or controversies arising out of or relating to
this agreement through mediation, except as otherwise expressly provided in this agreement.
Claims not resolved by mediation shall be resolved through litigation in a Court of competent
jurisdiction. The Parties hereby irrevocably and unconditionally submit to the exclusive
jurisdiction of the courts within the State of Colorado and agree that the proper venue shall be the
County of Pitkin, State of Colorado with respect to any dispute, action, claim or cause of action
arising out of or in connection with this agreement, including any disputes regarding its validity
or interpretation and the exercise of any right or the enforcement of any obligation arising
hereunder.
31. Force Majeure.
a. Purchaser shall not be liable to Guerdon for any delay in the completion of the on-
site work and foundations as scheduled or for a lack of availability of on-site or off-
site storage where such delay have been occasioned by earthquake, fire, flood,
landslide, lightning or other severely disruptive natural occurrences; pandemic;
embargo; strike; civil unrest; failure to secure materials not due to the acts or
omissions of Purchaser or its agents; or any other circumstances beyond
Purchaser's reasonable control that shall prevent Guerdon from delivering the
Modular Units until the causes interfering with the completion of the site work and
foundations have been removed.Notwithstanding the foregoing,none of the events
in this subsection shall excuse Purchaser from the timely payment of all amounts
due or become due to Guerdon under this Agreement.
b. Guerdon shall not be liable to Purchaser for any failure to make Modular Units
ready for transport or to transport such Modular Units where such failure has been
occasioned by earthquake, fire, flood, landslide, lightning or other severely
disruptive natural occurrences; pandemic; embargo; strike; civil unrest; failure to
secure materials or Transportation Services not due to Guerdon's acts or omissions;
or any other circumstances beyond Guerdon's reasonable control that shall prevent
Guerdon from making ready for transport or transporting the Modular Units or
prevent Purchaser from accepting delivery, until the causes interfering with
delivery have been removed.
32. Governing Law. This agreement and the rights and obligations of the Parties hereto shall
be governed by and construed and enforced in accordance with the substantive laws (but not the
rules governing conflicts of laws)of the State of Colorado.
33. Third-Party Beneficiaries. It is the explicit intention of the Parties that no person or entity
other than the Parties is or shall be entitled to bring any action to enforce any provision of this
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Agreement against either of the Parties, and that the covenants, undertakings, and agreements set
forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by the
Parties hereto or their respective successors and assigns as permitted hereunder.
34. Successors and Assigns. Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the Parties. Neither this Agreement nor any of the rights and obligations of
either of the Parties hereunder may be assigned or otherwise transferred by either Party without
the prior written consent of the other Party, except that either Party may make a collateral
assignment to a secured lender or (in the case of Guerdon) to the issuer of a bond securing its
performance hereunder. Except as otherwise expressly provided in this Agreement, neither Parry
may delegate performance of any of its rights and obligations hereunder without the prior written
consent of the other Party. Guerdon acknowledges this Project is being performed on behalf of the
owners,equity partners and lenders engaged in the development of the Project,and each and every
one of them can and may become successors to the Purchaser and shall have all the rights and
obligations of the Purchaser contained herein.
35. Amendment of Agreement. This Agreement cannot be amended, modified or
supplemented except as agreed upon in writing by the Parties.
36. Entire Agreement. This Agreement, including all exhibits referenced herein and attached
hereto, constitutes the entire Agreement of the Parties regarding the subject matter hereof, and
supersedes all prior agreements and understandings, both written and oral, among the Parties, or
any of them, with respect to the subject matter hereof including the previously executed Letter of
Intent, except to the extent that any payment pursuant to such letter is applied to this contract. No
oral statements or prior written material not specifically incorporated herein shall be of any force
and effect, and no changes in or additions to this Agreement shall be recognized unless
incorporated herein by amendment, such amendment to become effective on the date stipulated
therein. In the event of a conflict between the provision of this Agreement and any of the Exhibits
attached hereto or between any of the Exhibits, such conflict shall be resolved in favor of the
Agreement or Exhibit that is higher in priority,with the priority of the documents being as follows:
(1) The Agreement
(2) Exhibit A—Product Specifications
a. Exhibit A.1 —Modular Construction Specifications
b. Exhibit A.2—Interior Finish Matrix
(3) Exhibit G— Scope of Work
(4) Exhibit H—Milestone Schedule
(5) Exhibit I—Insurance and Bonding
(6) Exhibit E—Deposit and Payment Schedule
(7) Exhibits D—Supply Agreement Price
(8) Exhibits N—Supply Bond
(9) Exhibit B—Preliminary Plans
(10) Exhibit C—Plans: Completed After the Effective Date: Approved by AOR
(11) Exhibits F—Guerdon Two(2)Year Limited Warranty
(12) Exhibit K—Modular Unit Conformance Sign-Off
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(13) Exhibit M—Water Commissioning Process
37. Notices. Any notice or communication ("Notice") hereunder or in any agreement entered
into in connection with the transactions contemplated hereby must be in writing and given via
overnight delivery service,by delivering the same in person, or electronic mail. Such Notice shall
be deemed received on the date on which it is delivered as documented by the signed delivery
receipt or is hand-delivered or emailed. Either Party may change its address for Notice by giving
written Notice to the other Party in conformity with this Section. The Parties agree that electronic
mail ("email") will be accepted for purposes of Notices, invoices, and communication regarding
inspection schedules, if the emailing Party receives verification of receipt from the other Party.
For purposes of Notice,the contact information of the Parties shall be:
If to Guerdon: Guerdon,LLC
5556 S. Federal Way
Boise, Idaho 83716-9617
Attention: John Beddow
Electronic Mail:jmbeddow c guerdon.com
If to Purchaser:
[address]
[address]
[attention]
[email]
With copies(which shall not constitute Notice)to:
City Attorney
City of Aspen
130 S. Galena St.
Aspen, CO 81611
[attention]
[email]
38. Severability. If any one or more of the provisions contained in this Agreement shall, for
any reason, be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement and this Agreement shall
be construed as if such invalid,illegal,or unenforceable provision had never been contained in this
Agreement.
39. Counterparts. This Agreement may be executed in counterparts and such counterparts
together shall constitute a single instrument.Delivery of an executed counterpart of this Agreement
by electronic means, including, without limitation, by fax transmission or by electronic delivery
in portable document format(".pdf'),shall be equally effective as delivery of a manually executed
counterpart hereof. The Parties hereto acknowledge and agree that in any legal proceedings
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between them respecting or in any way relating to this Agreement, each waives the right to raise
any defense based on the execution hereof in counterparts or the delivery of such executed
counterparts by electronic means.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
GUERDON LLC CITY OF ASPEN
By: By:
John Bed d Name:
CEO Its:
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EXHIBIT LIST:
[ATTACHED AND INCORPORATED HEREIN]
EXHIBIT A: PRODUCT SPECIFICATIONS which incorporates the following:
EXHIBIT A.1: MODULAR CONSTRUCTION SPECIFICATIONS
EXHIBIT A.2: INTERIOR FINISH MATRIX
EXHIBIT B: PRELIMINARY PLANS
EXHIBIT C: PLANS: COMPLETED AFTER THE EFFECTIVE DATE: Approved& Stamped
by AOR [not attached]
EXHIBITS D: SUPPLY AGREEMENT PRICE
EXHIBIT E: DEPOSIT AND PAYMENT SCHEDULE
EXHIBIT F: GUERDON TWO (2)YEAR LIMITED WARRANTY
EXHIBIT G: SCOPE OF WORK
EXHIBIT H: MILESTONE PRODUCTION AND DELIVERY SCHEDULE
EXHIBIT I: INSURANCE
EXHIBIT J: intentionally omitted
EXHIBIT K: MODULAR UNIT CONFORMANCE SIGN-OFF
EXHIBIT L: intentionally omitted
EXHIBIT M: WATER COMMISSIONING PROCESS
EXHIBITS N: SUPPLY BOND
4813.5912.6716.1 Supply Agreement M-1084 20200721 15