HomeMy WebLinkAboutresolution.council.038-08 RESOLUTION NO. 2002-38
(SER~ES OF 2002}
A RESOLUTION OF THE CITY COUNCIL OF ASPEN. COLORADO, APPROVING A
CONTRACT FOR CONSTRUCTION BETWEEN THE CITY OF ASPEN AND BTE
CONCRETE FORMWORK, LLC, .~xlD AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN AND
AUTHORIZING THE MAYOR TO SIGN A CONSTRUCTION LICENSE WITH MAROON
CREEK CLUB MASTERS ASSOCIATION.
WHEREAS, there has been submitted to the City Council a Contract for Construction
between the City of Aspen, Colorado and BTE Concrete Formwork, LLC, and a Construction
License with Maroon Creek Club Masters Association, copies of which is annexed hereto and
part thereof.
NOW, THEREFORE. BE IT RESOLVED BY THE CITY COUNC][L OF THE CITY
OF ASPEN, COLORADO.
Section One
That the City Council of the City of Aspen hereby approves that a Contract for
Construction between the City of Aspen, Colorado, and BTE Concrete Formwork, LLC. and a
Construction License with Maroon Creek Club Masters Association, regarding the Construction
of the Maroon Creek Pedestrian Bridge, copies of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager to execute said Contract and authorize the
Mayor to execute said License on behalf of the City of Aspen.
Helef~ Kalin Klan~yor -~'
I, Kathryn Koch, duly appoir~ted and acting City Clerk do certify that the foregoing is a tree and
accurate copy..o~hat reso!ution adopted by the City Council of the City of Aspen, COlorado, at a
meeting held ~7~ ?/~ / ~ ,2002.
,.? Kathryn S. K~I~, ~ity~'~e/r~ x
MEMORANDUM
TO: MA YOR AND COUNCIL
THROUGH: STEVE BAR WICK, CITY MANAGER
ED SADLER, ASSET MANAGER
FROM: JEFF WOODS, MANAGER, PARKS AND RECREATION
PHIL OVEREYNDER, UTILITY DIRECTOR
DATE: MAY 8, 2002
RE: RESOLUTION # 2002.~'~ : APPROVAL OF THE CONTRACT
FOR CONSTRUCTION FOR THE MAROON CREEK
PEDESTRL4N BRIDGE
CC: JOHN WORCESTER, CITY ATTORNEY
SUMMARY: In November of 2000 the citizens of Aspen approved a .5 % increase in
sales tax to purchase open space. This question additionally gave the City the authOrity
to bond up to $38 million dollars for the purchase and development of open space. In the
summer of 2001 a $10.§ million dollar bond issue was released to purchase Bass Park,
purchase the Joy Smith Parcel, and construct a pedestrian bridge between the Tiehack Ski
Area and Iselin Park. $1,535,188.00 of this bond issue will be used to construct the
pedestrian bridge. In addition, the project includes participation by the City Water and
Electric Departments for placement of utility lines ($412,375.00) and the Maroon Creek
Club ($475,000).
City staff and consultants have worked through a significant design and pre-construction
process for the project and have selected a contractor for construction. The contractor,
BTE Concrete Formwork, has provided the City a Construction Contract with a
guaranteed Maximum Price of $2,126,563 that is within the project budget as further
explained in the FINANCIAL IMPLICATIONS section of this memorandum.
At this time we are requesting that you authorize the Construction Contract for the
MAROON CREEK PEDESTRIAN BRIDGE for the amount of $2,126,563.00. We
are also requesting that you authorize the Mayor to sign a COnstruction License
with the Maroon Creek ClUb Masters AssoCiation for access to and construction of
the bridge over their property.
PREVIOUS COUNCIL ACTION: This project was discussed at numerous work
sessions with City Council concerning the Iselin Park Master Plan and the Iselin Park
recreation complex. City Council approved a contract for design services with Carter-
Burgess and gave broad direction regarding the design parameters of the bridge on June
25, 2001. On November 5, 2001, the project was presented to City Council as a part of
the proposed 2002 project schedule for the Parks and Recreation Department.
BACKGROUND: The improvements required to complete the Iselin Park recreational
complex was a part of the package approved as the 1999 Parks, Recreation and Open
Space bond issue and included the placement of a pedestrian bridge over the Maroon
Creek canyon between the Iselin recreation complex and the base of the Tiehack ski area.
This bridge will serve to complete a missing link in a multi-purpose trail system that
accommodates walkers, runners, bicyclists, rollerbladers, skiers and equestrians. Existing
multi-use trails provide access to the east and west ends of this future bridge. Anticipated
improvements to the trail systems on Tiehaek/Buttermilk Mountain and the Maroon
Creek/Castle Creek corridors will increase demand for the connection this bridge will
provide. There is a primitive, severely degraded single-track trail that drops down into the
Maroon Creek canyon, crosses a bridge constructed by the United State Forest Service
(USFS) and then climbs back up the canyon. The new bridge will provide a direct, fully
accessible alternative to this route. The existing Nordic ski trail connection is very steep
and narrow and does not allow for passage of snowcats for trail grooming. The new bridge
will provide a safe convenient connection between the two Nordic trai! systems for both
skiers and grooming equipment. The bridge has been designed so that it can can'y
emergency vehicles if necessary as an alternate route to Highway 82. This was requested
by City Council and has the support of the local emergency services.
The water depamnent also has a long-range need to make a loop connection in the city
water system using the pedestrian bridge and is a partner in this construction project. The
existing water distribution system provides only a single crossing of Maroon Creek,
which severely limits the reliability of delivery of water to the area west of the existing
Highway 82 Bridge. Scheduling needed repairs and replacements on this single line
segment often means significant disruption of water service to more than 10% of the
City's existing water customers located at the North Forty, the Airport Business Center,
the Airport, the Maroon Creek Club, and the Buttermilk base areas. Future development
of the proposed 330 housing unitS at the Burlingame property together with anticipated
private development at the Zoline property will put significant new water service
demands on the only water transmission line crossing Maroon Creek. All other areas of
the City's service area that include a creek crossing have at least two crossings to provide
for a "looped" system to increase the level of water system reliability and is a common
engineering practice in most communities. Improving the reliability of the water system
to serve additional needs west of Maroon Creek wil! require additional line extensions to
connect this bridge crossing with the 2 million gallon Tiehack tank. These future
connections will be scheduled through the Asset Management Plan (AMP) process.
Because of the terms of the annexation of the Maroon Creek Club, and the desire to
develop a bridge design that fits in with the site and environment and satisfies the concerns
of the adjacent landowncns, an extensive design and pre-construction process was
conducted from June of 2001 to March of 2002. This process included:
1) Preliminary Design: The City selected Carter-Burgess as the fn'm to conduct
the design of the bridge. The preliminary design process resulted in the
decision to go forward with an "arch-deck" design. Included as
ATTACHMENT A are design drawings of the bridge selected. The arch-deck
design allows the bridge to function efficiently and in harmony with the setting.
The design also avoids any impact to sensitive wetlands and riparian vegetation
along the edge of the creek.
2) Maroon Creek Club Subdivision Improvements Agreement (SIA): The SIA
was amended in 1999 after annexation of the club into the City of Aspen. The
amended SIA provides $475,000 to help fund the bridge but requires the City to
gain approval of the bridge design and location from the homeowners
association. In addition, the City must enter into a Construction License with
the homeowners to access and construct the bridge on the Tiehack side. The
City has received approval of the bridge design and location and has negotiated
a Construction License for City Council's signature (ATTACHMENT D).
3) Final Design: The City pre-qualified four firms to participate in the final design
process and, if the price was within budget, construct the bridge under a "price
not to exceed" contract. BTE Concrete Formworks, LLC, of Glenwood
Springs, was selected because of their expertise, local knowledge and their
submission of the lowest cost proposal. The City, BTE and Carter-Burgess
then worked together to develop the most cost-effective final design for the
bridge. The City Water Department also became involved to develop a final
design of the water line to be installed underneath the deck of the bridge.
4) Construction Bid: BTE took the construction drawings developed during final
design and submitted a fixed price to construct the bridge and install the water
line.
FINANCIAL IMPLICATIONS: Staff has taken the constmction bid and developed
an overall Project Budget Summary that is included as ATTACHMENT B. Although
the total expenditures amount to $2,402,563.00, $172,000.00 has already been
appropriated to cover the pre-construction costs. BTE Proposes to construct the bridge
and place the water and utility line improvements for $2,126,563.00. The difference
between the total project budget and the construction bid amount is made up by the pre-
construction costs ($172,000), project management/inspection costs ($35,000),
Conslruction License impact fees ($24,000), and a contingency ($50,000).
$475,000.00 in revenues for the project will come from the Maroon Creek Club as a
contribution under the terms of the development's Subdivision Improvement
Agreement. The Water Department will contribute $377,401.00 for placement of a
water line and the Electric Department will contribute $34,974.00 for the placement of
utility conduits under the bridge deck (Water is requesting an additional appropriation
of $177,401.00.00 to the $200,000.00 approved for this project as part of the 2002
AMP for a total contribution of $377,40100). Parks & Recreation will fund the
remaining $1,535,188.00 through the 2001 bond issue. The contribution from the
3
Maroon Creek Club is payable to the City upon completion of the project. Therefore,
Parks & Recreation will cover the $475,000 with existing reserves.
RECOMMENDATION: Staff is recommending that Council approve the
Construction Contract with BTE Concrete Formwork, LLC to construct the Maroon
Creek Pedestrian Bridge and utility lines (ATTACHMENT C) and to sign the
Construction License with the Maroon Creek Club Masters Association (MCCMA)
(see ATTACHMENT D).
ALTERNATIVES: If the City does not move forward with this project at this time, the
only other viable alternative would be not to build the pedestrian bridge and rely on
existing trail and utility infrastructure. The trail system would remain the same,
providing inadequate connections and links within the existing Nordic and public trail
systems. The opportunity to provide an additional means of emergency access over
Maroon Creek will be lost. The Water Department would forgo placing the needed
improvements until some point in the future and would then make the connection at a
substantial increase in cost. The price to construct the bridge in the furore will almost
certainly go up due to inflation and the recently imposed tariffs on imported steel.
Finally, an opportunity to reduce net costs on the construction of the bridge will go
away with the expiration of the Maroon Creek Club's requirement to contribute to the
funding of the project.
PROPOSED MOTIONS: "I move to approve the Construction Contract between the
City of Aspen and BTE Concrete Formwork, LLC for the construction of the Maroon
Creek Pedestrian Bridge and water line for the amount of Two-million, two-hundred
and ninety-two thousand, six-hundred and ninety eight dollars ($2,126,563.00).
further move to approve the Mayor to sign the Construction License with the Maroon
Creek Club Masters Association for access to and construction of the bridge."
CITY MANAGER COMMENTS:
Attachments:
ATTACHMENT A - Design Plans for the Maroon Creek Pedestrian Bridge
ATTACHMENT B - Project Funding Summary
ATTACHMENT C - Construction Contract with BTE
ATTACHMENT D - Construction License with MCCMA
4
MEMORANDUM
TO: MA YOR AND COUNCIL
FROM: PHIL OVEREYNDER, UTILITYDIRECTOR~.~~
THROUGH: STEVE BARWICK, CITY MANAGER ------ ~~
THROUGH: JOHN WORCESTER, CITYATTORNEY
DA TE: MA Y 8, 2002
RE: INCORPORATION OF WATER LINE CROSSING IN MAROON
CREEK PEDESTRIAN BRIDGE
Summary: Staff recommends incorporation of a water line crossing as part of the
proposed Maroon Creek (Iselin to Tiehack) pedestrian bridge. This crossing will increase
the system reliability in the developing area west of Maroon Creek. The proportionate
financial share (based on loading factors) for the new water line exceeds the existing AMP
appropriation for this purpose. A supplemental appropriation from the Water Fund will be
necessary to provide for payment of a proportionate share of the bridge construction.
Background: The existing water distribution system provides only a single crossing of
Maroon Creek, which severely limits the reliability of delivery of water to the area west of
the existing Highway 82 bridge. Scheduling needed repairs and replacements on this
single line segment often means significant disruption of water service to more than 10%
of the City's existing water customers located at the North Forty, the Airport Business
Center, the Airport, the Maroon Creek Club, and the Buttermilk base areas. Future
development of the proposed 330 housing units at the Burlingame property together with
anticipated private development at the Zoline property will put significant new water
service demands on the only water transmission line crossing Maroon Creek. All other
areas of the City's service area which include a creek crossing have at least two crossing to
provide for a "looped" system to increase the level of water system reliability and is a
common engineering practice in most communities.
Existing CouncilAction: Providing for a second water line crossing of Maroon Creek
and improving the reliability of service to the growing area west of Maroon Creek has been
a long-term goal of the Water Department. Council appropriated $200,000 for this project
as part of the 2002 AMP.
Financial Implications: Actual expenditures for the water line crossing will be
$377,401. An additional appropriation of $177,401 is required to pay for the water line
together with a pro-rated share of the cost of the bridge, based on the design load for the
12" water line as compared to the total load carried. Creek crossings are very expensive
and this is considered the most cost effective way to cross the Maroon Creek gorge. The
Water Fund is expected to have sufficient revenue to cover this increased as a result of
continued strong receipts for tap fees. Adding a water line crossing at a later date is not an
option as the bridge must be designed to accommodate the weight ora 12" pipe filled with
water.
Next Steps: Improving the reliability of'the water system to serve additional needs west
of Maroon Creek will require additional line extensions to connect this bridge crossing
with the 2 million gallon Tieback tank. In the interim, the new connection can provide an
emergency connection to customers in this area if a failure were to occur in the existing
single line crossing. These future connections will be scheduled through the AMP process,
and will be necessary to provide improved service reliability to newly proposed
development of Maroon Creek
Recommendation: The Water Department staff recommends approval of the additional
$177,401 appropriation necessary to complete this needed facility and award of the bridge
contract as requested by the Parks Department.
Ci~g Manager Comments:
ATTACHMENT A
Design Plans for the Maroon Creek Pedestrian Bridge
ATTACHMENT B
Project Funding Summary
ATTACHMENT B
MAROON CREEK PEDESTRIAN BRIDGE BUDGET SUMMARY
Expenditures
Pre-Construction Costs
Preliminary and Final Engineering (Carter-Burgess) $ 130,000.00
Pre-Construction Project Management (Newland Project Res.) $ 25,000.00
Soils Testing (HP Geotech) $ 12,000.00
Surveying (Sopds Engineering) $ 5,000.00
Construction Costs
Brid,qe Construction (BTE Concrete Formworks, LLC)
Bridge Construction $ 1,867,698.00
Water Line Installation $ 223,891.00
Electric Line Installation $ 34,974~00
Sub-Total: $ 2,126,563.00
Additional Construction-Related Costs:
Compliance with Construction License $ 24,000.00
Construction Project Management (Asset Mgt. Dept.) $ 15,000.00
Construction Inspection $ 20,000.00
Landscaping (Parks Dept.) $ 15,000.00
Sub-Total: $ 74,000.00
Revenues
MCClub Contribution $ 475,000.00
Water Dept. Contribution $ 377,401.00
Electric Dept. Contribution $ 34,974.00
Parks Dept. Budget $ 1,535,'188.00
ATTACHMENT C
Construction Contract with BTE Concrete Formworks, LLC
CONTRACT FOR CONSTRUCTION
MAROON CREEK PEDESTRIAN BRIDGE
PROJECT #2002-014
THIS AGREEMENT, made and entered into on May 14, 2002, by and between the CITY OF
ASPEN, Colorado, hereinafter called the "City", BTE CONCRETE FORMWORK, LLC,
hereinafter called the "Contractor".
WHEREAS, the City has caused to be prepared, in accordance with the law,
specifications and other Contract Documents for the work herein described, and has approved
and adopted said documents, and has caused to be published, in the manner and for the time
required by law, an advertisement, for the project: Maroon Creek Pedestrian Bridge; and,
WHEREAS, the Contractor, in response to such advertisement, or in response to direct
invitation, has submitted to the City, in the manner and at the time specified, a sealed Proposal
in accordance with the terms of said Invitation for Proposals; and,
WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined,
and evaluated the Proposals submitted in response to the published Request for Proposals
therefore, and as a result of such canvass has determined and declared the Contractor to be
the most responsible and responsive Proposer for the said Work and has duly awarded to the
Contractor a Contract For Construction therefore, for the sum or sums set forth herein;
NOW, THEREFORE, in consideration of the payments and Contract for Construction
herein mentioned:
1. The Contractor shall commence and complete the construction of the Work as fully
described in the Contract Documents.
2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and
other services necessary for the construction and completion of the Work described
herein.
3. The Contractor shall commence the work required by the Contract Documents within
seven (7) consecutive calendar days after the date of "Notice To Proceed" and will
complete the same by the date and time indicated in the Special Conditions unless the
time is extended in accordance with appropriate provisions in the Contract Documents.
CC1-971.doc Page I
4. The Contractor agrees to perform all of the Work described in the Contract Documents
and comply with the terms therein for a sum not to exceed Two-Million, One-hundred
and twenty-six Thousand, fiVe-Hundred and Sixty-three and 00/100 ($2,126,563.00)
DOLLARS or as shown on final bid proposal.
5. The term "Contract Documents" means and includes the documents listed in the City of
Aspen General Conditions to ContraCts for Construction (version GC97-2) and in the
Special Conditions. The Contract Documents consist of the following and are included
herein by this reference and made a part hereof as if fully set forth here:
a) Addenda
b) Drawings
i. Detailed Drawings
ii. Standard Drawings
c) Final Bid PropOsal
d) Special Conditions
e) Referenced Technical Specifications
f) Contract for Construction
g) Standard General Conditions
h) Construction License
6. The City shall pay to the Contractor in the manner and at such time as set forth in the
General Conditions, unless modified by the Special Conditions, such amounts as
required by the Documents.
7. This Contract For ConStruction shall be binding upon all parties hereto and their
respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein or in the Contract Documents, this Contract For
Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the
Municipal Code, including the approval requirements of Section 4-08-040. This
agreement shall not be binding upon the City unless duly executed by the City Manager
or the Mayor of the City of Aspen (or a duly authorized official in his/her absence)
following a resolution of the Council of the City of Aspen authorizing the Mayor or City
Manager (or a duly authorized official in his/her absence) to execute the same.
8. This agreement and all of the covenants hereof shall inure to the benefit of and be
binding upon the City and the Contractor respectively and their agents, representatives,
employees. Successors, assigns, and legal representatives. Neither the City nor the
Contractor Shall have the right to assign, transfer or sublet his or her interest or
obligations hereunder without the written consent of the other party.
9. This agreement does not and shall not be deemed or construed to confer upon or grant
to any third party or parties, except to parties to whom the Contractor or the City may
assign this Contract FOr Construction in accordance with the specific written consent, any
rights to claim damages or to bring suit, action or other proceeding against either the City
or the Contractor because of any breach hereof or because of any of the terms,
covenants, agreements or conditiOnS herein contained.
CCl-971.doc Page 2
10. No waiver of default by either party of any terms, covenants or conditions hereof to be
performed, kept and observed by the other party shall be construed, or operate as, a
waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
11. The parties agree that this Contract For Construction was made in accordance with the
laws of the State of Colorado and shall be so construed. Venue is agreed to be kept
exclusively in the courts of Pitkin County, Colorado.
12. In the event that legal action is necessary to enforce any of the provisions of this
Contract for Construction, the prevailing party shall be entitled to its costs and
reasonable attorney's fees.
13. This Contract For Construction was reviewed and accepted through the mutual efforts of
the parties hereto, and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of
the parties in the negotiation, review or drafting of this Contract For Construction.
14. The undersigned representative of the Contractor, as an inducement to the City to
execute this Contract For Construction, represents that he/she is an authorized
representative of the Contractor for the purposes of executing this Contract For
Construction and that he/she has full and complete authority to enter into this Contract
For Construction for the terms and conditions specified herein.
IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For
Construction on the date first above written.
CC1-971 .doc Page 3
A~ED BY: ~ ~y CITY OF ASPEN, COLORADO
REC( ¢IMENDED FOR APPROVAL: APPROVED AS TO FORM:
City P~ '~ R~e~c~eation Department City ¢~'6-~y~c'', -
ATTESTED BY:
Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a
partnership, the Contract shall be signed by a Principal and indicate title.
CC1-971.doc Page 4
CERTIFICATE OF INCORPORATION
(To be completed if Contractor is a Corporation)
STATE OF )
)SS.
COUNTY OF .)
On this day of ,20 , before me appeared
, to me personally known, who,
being by me first duly sworn, did saY that s/he is of
and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said instrument was signed
and sealed in behalf of said corporation by authority of its board of directors, and said deponent
acknowledged said instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above
written.
Notary Public
Address
My commission expires:
CC1-971 .doc Page 5
City of ~spen
General Conditions
Fo]~
Constx~uc~iOn Contracts
(~e~-sion
CC1-971.doc Page 6
CITY OF ASPEN, COLORADO
GENERAL CONDITIONS
FOR
CONSTRUCTION CONTRACTS
(Version GC-97-2)
TABLE OF CONTENTS
Article 1 - Abbreviations, Definitions, and Provisions of General Applicability.
1.1. Abbreviations .................................................................................................................................................................................................. 5
1.2. Definitions ....................................................................................................................................................................................................... 5
Article 2 - Preliminary Matters.
2.1. Delivery of Bonds ............................................................................................................................................................................................ 8
2.2. Copies of Documents ...................................................................................................................................................................................... 8
2.3. Commencement of Contraat Time, Notice to Proceed .................................................................................................................................. 8
2.4. Starting the Project .......................................................................................................................................................................................... 9
2.5. Before Stinting the project .............................................................................................................................................................................. 9
2.6. Pre-construction Conference ........................................................................................................................................................................ 9
2.8 Project Progress Meetings ................................................................................................................................................................................ 9
Article 3 - Contract Documents, Intent, Amending, Ownership, Escrow Proposal Documents
3.1. ntent ............................................................................................................................................................................................................. 10
3.4. Amending and Supplementing Contract Documents .................................................................................................................................... 10
3.6. Reuse of Doenments ....................................................................................................................................................................................... 11
3.7. Precedence of Documents ............................................................................................................................................................................ 11
Article 4- Availability of Lands, Physical Conditions, Reference Points.
4.1. Availability of Lands ...................................................................................................................................................................................... Ii
4.2. Physical Conditions .......................................................................................................................................................................................... 11
4.2.1. Exploration and RepoRs ................................................................................................................................................................................... 12
4.2.2. Existing Stractures .......................................................................................................................................................................................... 12
4.2.3. Repott of Differing Conditions ................................................................................................................................................... :.~ ................ 12
4.2.4. Engineer's Review ........................................................................................................................................................................................ 12
4.2.5. Possible Document Change ........................................................................................................................................................................... 12
4.2.6. Possible Price mad Time Changes .................................................................................................................................................................... 12
4.3. Physical Conditions - Underground Facilities ............................................................................................................................................... 12
4.3.1. Shown or Indicated ......................................................................................................................................................................................... 12
4.3.2. Not Shown or Indicated ................................................................................................................................................................................... 12
4.4. Land Surveys & Reference Points ................................................................................................................................................................. 12
4.5. Proteation of Existing Vegetation ................................................................................................................................................................. 13
4.6. Hazardeus Materials ...................................................................................................................................................................................... 14
4.7. Conttactor's Representations .......................................................................................................................................................................... 14
Article 5 - Bonds, Indemnification, Liability, and Insurance
5.1.Performance, Payment, Maintenance and 0ther Bonds ..................................... ,.~ ....................................................................................... 15
5.2. Indemnification ............................................................................................................................................................................................... 15
5.3. Conttaator's Insurance .................................................................................................................................................................................... 15
5.4. City's Liability Insurance ............................... :.....: .............. : ................................... : ....................................................................................... 17
Article 6 - Contractor's Responsibilities.
6. I. General Responsibilities ................................................................................................................................................................................. 17
6.2. Supervision and Superintendence .................................................................................................................................................................. 17
6.3. Labor, Materials, and Equipment .................................................................................................................................................................. 18
6.4.-6.7 Reserved ....................................................................................................................................................................... 18
6.8 Sub-centractors, Suppliers and Others ................. ~ ......................................................................................................................................... 19
6.9 Sub-contracting .............................................................................................................................................................. 20
C01-971 .floc Page 7
6.10 Patent Fees, Royaifies, Permits .............................................................................................................................................. 20
6.11 Permits ........................................................................................................................................................................ 20
6.12 Laws and Regulations ....................................................................................................................................................... 20
6.13 Taxes ............................................................................................................................................................................ 21
6.14 Use of Premises ................................................................................................................................................................ 21
6.15 Record Documents .......................................................................................................................................................... 21
6.16 Safety and Protection ........................................................................................................................................................ 21
6.17 Emergencies ................................................................................................................................................................... 22
6.18 Shop Drawings and Samples .............................................................................................................................................. 22
6~ 19 Claim Release, Mechanics' Lien ............................................................................................................................................ 23
6.20 Continuing the Work ......................................................................................................................................................... 24
6.21 Contractor's Facilities ......................................................................................................................................................... 24
Article 7 - Other Work.
7.1. Related Work at Site ....................................................................... , .............................................................................................................. 24
7.2. Coordination ................................................................................................................................................................................................. 24
Article 8 - City's Responsibilities.
8.0 ................................. ~ ....................................................................................................................... 25
Article 9 -Engincer's Status During Construction.
9.1. CiVfs Representative .................................................................................................................................................................................... 25
9.2. Visits to Site ................................................................................................................................................................................................... 25
9.3. Project Representation .................................................................................................................................................................................. 25
9.4. Clarification and Interp~tation ..................................................................................................................................................................... 26
9.5. Authorized Variations in Work ..................................................................................................................................................................... 26
9.6. Rejecting of Defective Work ........................................................................................................................................................................ 26
9.7 Shop Drawings, Change Orders and Payments .............................................................................................................................................. 26
9.8 Decisions on Disputes ......................................................................................................................................................... 26
9.9 Arbitration ..................................................................................................................................................................... 27
9.10 Limitations on The Engineer's Responsibilities .......................................................................................................................... 27
Article 10 - Changes in the Work.
10.1. City Initiated Changes ......................................................................................................................................................................................... 27
10.2. Work Directive Change ...................................................................................................................................................................................... 27
10.3. Change Order ....................................................................................................................................................................................................... 28
10.4. Contractor Change Request ................................................................................................................................................................................ 28
10.5. DownTime
10.6. Submittal Requirements a~d Waiver of Claims ................................................................................................................................................ 29
Article 11 - Changes of Contract Price.
I1A. ConY;act Price Adjustments ................................................................................................................................................................................. 29
li.2. Con~raat Time Adjustments ................................................................................................................................................................................. 29
11.3. Force Account Work ............................................................................................................................................................................................ 30
11.4. Comxact Sum Determination ............................................................................................................................................................................... 30
11.5. Cost and Pricing Data ............................................................................................................................................................................................ 32
11.6. Variation in QuantiW of Unit Priced Items ........................................................................................................................................................ 32
Article 12 - Reserved.
Article lg - Warranty and Guarantee (Maintenance Bond); Tests and Inspection; Correction, Removal or Acceptance of Defective Work.
13.1. WarranW ............................................................................................................................................................................................................. 33
13.2. Access to Work ................................................................................................................................................................................................... 34
13.3. Tests and Inspections ........................................................................................................................................................................................... 34
I3.4. Uncovering Work ................................................................................................................................................................................................. 35
13.5. City May Stop the Work ........................................................................................................ i.~i .......................................................................... 35
13.6. Correction or Removal of Defective Work ......................................................................................................................................................... 35
13.7. Correction Petiod ................................................................................................................................................................................................. 35
13.8. Acceptance of Defective Work .............................................................................................................................................................................. 35
13.9. City May Correct Defective Work ...................................................................................................................................................................... 36
13.10. Unauthorized Work ............................................................................................................................................................................................ 36
Article 14 - Payments to Contractor and Completion.
CC1-9?l .ctoc Page
i4.1. Determination of Work Value ............................................................................................................................................................................ 36
14.2. Application for Progress Payment ....................................................................................................................................................................... 36
14.3. ConU'actogs Warranty of Title ............................................................................................................................................................................ 37
14.4. Engineer's Review of Progress Payments .......................................................................................................................................................... 37
14.5. Substantial Completion ...................................................................................................................................................................................... 38
14.6. Partial Utilization ................................................................................................................................................................................................. 38
14.7. Final Inspection ................................................................................................................................................................................................... 39
14.8. Final Progress Payment ........................................................................................................................................................................................ 39
14.9. Settlement Date, Notice to Subcontractors, Acceptance and Final PaYment ...................................................................................................... 39
14.10. Contractor's Continuing Obligation ................................................................................................................................................................... 39
14.11. Time for Completion and Liquidated Damages .................................................................................................................................................. 40
Article 15 - Suspension of Work and Termination.
15.1. City May Suspend Work ................................................................................................................................................................................... 41
15.2. City May Terminate ............................................................................................................................................................................................ 41
15.5. Contractor May Stop Work or Terminate .......................................................................................................................................................... 42
Article 16 - Miscellaneous.
16.1. Nondiscrimination ............................................................................................................................................................................................. 42
16.2. Giving Notice ..................................................................................................................................................................................................... 43
16.3. Computation of Time .......................................................................................................................................................................................... 43
16:4. General ................................................................................................................................................................................................................ 43
16.5. Independent Contractor Status .............................................................................................................................................................................. 43
16.6. ProhibiIed Interest ............................................................................................................................................................................................. 43
16.7. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest ........................................................................................ 44
16.8. Payments Subject to Annual Appropriations .................................................................................................................................................... 44
16.9. Contractor Acceptance ...................................................................................................................................................................................... 44
I6.10. Successors ~md Assigns ...................................................................................................................................................................................... 45
I6.11. Third Parties ...................................................................................................................................................................................................... 45
16.12. Waiver ................................................................................................................................................................................................................ 45
16.13. Agreement Made in Colorado ............................................................................................................................................................................... 45
16.14. Attorneys' Fees .................................................................................................................................................................................................... 45
16.15. Waiver of Presumption ..................................................................................................................................................................................... 45
16.16. Severability Clause ............................................................................................................................................................................................. 45
16.17. Audit and Records ............................................................................................................................................................................................. 45
16.18. Audit .................................................................................................................................................................................................................... 46
CC1-971 .doc Page 9
INTRODUCTION
The Contract Documents are complementary, and what is required by any one shall be as binding as if required by alt, unless
certain services or equipment are specifically excluded. These General Conditions have been prepared to be incorporated by
reference into the Contract entered into between the City and the Contractor. In the event of conflict or inconsistency among the
Contract Documents, the order of precedence set forth in the Contract for Construction shall govern the interpretation of the
Contract between the City of Aspen and the Contractor. Words and abbreviations which have well-known technical or trade
meanings are used in the Contract Documents in accordance with their recognized meanings, provided however that those terms
required to be defined in the Proposal by the Contractor shall have the meaning given to them in the Proposal to the extent that they
are not in conflict with any other part or term of the Contract Documents.
ARTICLE 1 - DEFINITIONS
1.1. Whenever the words, forms, or phrases defined herein, or pronouns used in their place occur in the Contract Documents,
the intent and meaning shall be interpreted as follows:
ASCE 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 Proposal Documents
EIA Electronic Industries Association
EPA United States Enviromental 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 Elec~c Safety Code
NFPA National Fire Protection Association
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
CC1-971.doc Page 10
1.2. Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings
indicated which are applicable to both the singular and plural thereof:
Addenda - Written or graphic instruments issued prior to the opening of Proposals which clarify, correct or change the Proposal
documents, Contract Documents, drawings, details or specifications.
Bid - The offer or proposal of the bidder submitted on the prescribed form(s) setting forth the prices for the work to be performed.
Bonds - Bid, performance, payment, maintenance bonds and other acceptable instruments of financial security, furnished by the
Contractor and his/her surety in accordance with the Contract Documents.
Change Order - A written order to the Contractor authorizing an addition, deletion or revisi°n 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 aficer the
Effective Date of the Contract for Construction.
City or Owner - The City of Aspen in Pitkin County, Colorado.
Contract - All contract documents attached to the Contract for Coustmction and made a part thereof as provided herein.
Contract Documents - The Con~act including Request for Proposals, Instructions to Proposers, the Proposal, Addenda, General
Conditions, Special Conditions, Contract for Construction, Bid Bond, Notice of Award, Payment, Performance, and Maintenance
Bonds, Drawings identified in the Contract Documents or attached as part of the Proposal, and Specifications identified in the
Request for Proposals or attached as part of the Proposal, Affidavit of Compliance form, Liquidated Damages form, Contractor's
License form, Daily Construction Log form, Progress Pay Estimate form, and Insurance Certificates.
Contract for Construction - The written agreement between City and Contractor covering the Work to be performed.
Contractor - The qualified responsible and responsive firm or corporation with whom the City has entered into the Contract for
Construction.
Contract Price - The moneys payable by the City to the Contractor under the Contract Documents as stated in the Contract for
Construction (subject to the provisions of paragraph 11.4.), 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 City Engineering Department, used by the City Project Inspector to record
the Contractor's daily work quantities and project events. Daily construction log is the only verified justification for payment to the
Contractor.
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 Engineer's recommendation of final payment (unless
responsibility for the protection thereof has been assumed by the City at SubstantialCompletion in accordance with paragraph 14.5
or 14.6).
Drawings - The part of the Contract Documents which show the character and scope of the Work to be performed and which have
been prepared or approved by the Engineer.
Effective Date of the Contract for Construction - The date indicated in the Agreement on which it becomes effective, but if no
such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and
deliver.
Engineer - The person, firm, corporation or the City Engineer, named as such in the Contract Documents.
CCl-971 .doc Page 11
Field Order - A written order affecting a change in the Work not involving an adjusmaent in the Contract Time, issued by the
Engineer to the Contractor 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, roles regulations, ordinances, procurement code and/or orders.
Notice of Award - The written notice by the City to the apparent successful Proposer stating that upon compliance by the apparent
successful Proposer with the conditions precedent enumerated therein, within the time specified, the City will sign and deliver the
Contract.
Notice to Proceed - A written notice given by the City to the Contractor fixing the date on which the Contract Time will commence
to nm and on which Contractor shall start to perform Contractor'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 Engineering Department, which is to be used to record, approve, and
process payment when the Contractor 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 Docum~nts~
Project Inspector - The authorized Civil Engineer or Civil Engineering Technician, designated by the City Engineer to observe
construction, materials placement and testing and to prepare the Daily Construction Logs and field reports.
Proposal - The offer or proposal of the Proposer submitted on the prescribed form(s) setting forth the Proposem approach to the
Work, ability to complete the Work, and the Bid for the Work to be performed.
Proposer - Any qualified responsible and responsive firm or corporation submitting a Proposal for the Work.
Proposal Package - All information and standard Contract Documents prepared by the City to assist potential Proposers to prepare
their Proposals.
Punch List - A form or letter that lists all incomplete or deficient Proposal items, and is prepared upon substantial completion of
the Work by the City Project Inspector.
Shop Drawings - All drawings, diagrams, illustrations, brochures, schedules and other data which are specifically prepared by or
for the Contractor and the sub-contractor 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 Contractor and the
Sub-contractor 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 fim~ or corporation having a direct contract with the Contractor or with any other Sub-contractor for the
performance ora part of the Work at the site.
Substantial Completion - The Work (or a specified part thereof') has progressed to the point where, in the opinion of the Engineer
as evidenced by the Engineer's acceptance, is sufficiently complete, in accordance with the Contract Documents, so that the Work
can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as
applied to any Work refer to Substantial Completion thereof. The term Substantial Completion shall mean one hundred percent
(100%) completion of the Work.
CC1-971 .doc Page 12
Special Conditions or Special Provisions - The part of the Contract Documents that amends or supplements these General
Conditions.
Supplier - A manufacturer, fabricator, supplier, distributor, material man 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 siteJ
Undergronnd Facilities - Ali 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 fiimlsh 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 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
successfi~l completion of the Proposal items.
Written Notice or Written Notice of Amendment - A written amendment of the Con~ract Documents, signed by the City and the
Contractor on or after the Effective Date of the C0nmact for C0nstmction and n0nnally dealing With the hon:engineering 0r n0nl
technical rather than strictly Work-related aspects of the Contract Documents
ARTICLE 2 - PRELIMINARY MATTERS
2.1 Delivery of Bonds:
Whan Contractor delivers the executed Contracts to the Engineering Department, the Contractor shall also deliver such Bonds as
the Cun~ractor is be required to furnish in accordance with paragraph 5.1.
2.2 Copies of Documents:
The City shall furnish to the Contractor 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 reproductiun.
2.3 Commencement of Contract Time, Notice to Proceed:
Prior to the City issuing a Notice to Proceed, either the City Manager or the Mayor of the City of Aspen shall approve the Contract
Documents and shall execute the same. Notwithstanding any representations to the contrary made by City's employees, either
directly, indirectly, or by implication, no Contract 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 either (a) the City Manager has executed the Contract, or (b) The City Council has
author/zed the execution of the Contract, and the Contractor has executed the Contract 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 Contractor shall start to perform the Work on the date when the Contract Time commences to run, but no Work shall be done
at the site prior to the date on which the Contract Time commences to nm and prior to a mandatory pre-consa'uction conference
conducted by the City.
2. 5 Before Starting the Project:
Before undertaking each part of the Work, the Contractor shall carefully study and compare the Contract Documents and check and
verify pertinent figures shown thereon and all applicable field measurements. The Contractor shall promptly report in writing to the
CC1-971 .doc Page 13
Engineer any conflict, error or discrepancy, which ConWactor may discover and shall obtain a written interpretation or clarification
from the Engineer before proceeding with any Work, affected thereby.
2.5.1. Within Three Days after the Effective Date of the Contract (unless otherwise specified in the Special Conditions or
General Requirements), the Contractor shall submit to the Engineer for review:
2.5.1.1. An estimated progress schedule indicating the starting and completion dates of the various stages of the Work;
2.5.1.2. A preliminary schedule of Shop Drawing submissions; and
2.5.1.3. Quality Control and Quality Assurance (QA/QC) plan and policy to identit~ the
specific steps the Contractor will take to ensure the highest quality in the
constructed Proposal items.
2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action process.
2.5.2. Before any Work at the site is started, the Contractor shall deliver to the City and the Engineer, copies of certificates (and
other evidence of insurance requested by the City) which the Contractor is required to purchase and maintain.
Z6 Pre-construction Conference:
Within Seven (7) Consecutive Calendar Days after the Effective Date of the Proposal Award, and before the Contractor starts the
Work at the site, he/she and all of his/her sub-contractom and suppliers shall attend a mandatory pre-construction conference,
conducted by the Engineer and others as appropriate to discuss coordination of construction activities, procedures for handling
Shop Drawings and other issues, and to establish a working understanding among the patties as to the Work.
2. 7 Project Progress Meetings
The City and the Contractor 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.
CC1~971.doc Page 14
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.1 Intent:
The Contract Documents comprise the entire agreement between the City and the Contractor 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 fi.om the Contract
Documents as being required to produce the intended result will be supplied whether or not specifically called for. When words
which have a well-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be
interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society,
organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by
implication, shall mean the latest standard specification, manual, code or Laws or Regulations in effect at the time of opening of
Proposals (or, on the Effective Date of the Contract if there were no Proposals) 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, the Contractor or the
Engineer, or any of their consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective
to assign to the Engineer, or any of the Engineer's consultants, agents or employees, any duty or authority to supervise or 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 Engineer as provided in section 9.4.
3.1.2. If, during the performance of the Work, Contractor finds a conflict, error or discrepancy in the Contract Documents, the
Contractor shall so report to the engineer and the City in writing at once and before proceeding with the Work affected thereby and
shall obtain a written interpretation or clarification fi'om the Engineer.
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 tera~s and
conditions thereof in one or more of the following ways:
3.2.I. A formal Amendment of the Contract for Construction;
3.22 A Change Order pursuant to paragraph 10.3. As indicated in Article 11 Contract Price and Contract Time may only be
changed by a Change Order or a Written Notice of Amendment.
3.2.3. In addition, the requirements of the Contract Documents may be supplemented, and
minor variations and deviations in the Work may be authorized, in one or more of the following ways:
3.2.3.1. A Field Order (pursuant to paragraph 9.5);
3.2.3.2. The Engineer's approval of a Shop Drawing or sample (pursuant to paragraphs
6.18.5 and 6.18.6); or,
3.2.3.3. The Engineer's written interpretation or clarification (pursuant to paragraph 9.4).
3.3 ReuseofDocuments:
Neither the Contractor nor any Subcontractor or Supplier or other person or organization performing or furnishing any of the Work
under a direct or indirect contract with the City shall have or acquire any title to or ownership rights in any of the design details,
drawings or specifications.
CC 1-971 .doc Page 15
3.4 Precedence of Contract Documents:
The Contract governs over the Contract Documents. A Change Order governs over all other
Contract Documents impacted by change. The Special Conditions govern over the General
Conditions.
ARTICLE 4 - AVAILABILITY OF LANDS: PHYSICAL CONDITIONS: REFERENCE POINTS
4.1 Avallabilitg 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, including a 24-foot wide access way through Lot 16 of the Maroon Creek Club subdivision. The
Contractor 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 Engineer in preparation of the Contract
Documents. The Contractor may reasonably rely upon the accuracy of the technical data contained in such reports, but not upon
non-technical data, interpretations or opinions contained therein or for the completeness thereof for the' Contractor's purposes.
Except as indicated in the immediately preceding sentence and in paragraph 4.2.6. the Contractor shall have full responsibility with
respect to subsurface conditions at the site. Contractor shall not, by virtue of this paragraph, be relieved from exercising ordinmy
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 Engineer in preparation of the Contract Documents. The
Contractor may reasonably rely upon the accuracy of the technical data contained in such drawings, but not for the completeness
thereof for the Contractor's purposes. Except as indicated in the immediately preceding sentence and in paragraph 4.2.6. the
Contractor shall have full responsibility with respect to physical conditions in or relating to such stmctares. The Contractor shall
not, by virtue of this paragraph, be relieved from exercising ordina~ 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 Contractor believes that:
4.2.3.1. Any technical data on which the Contractor is entitled to rely as provided in
paragraphs 4.2.1 and 4.2.2 is inaccurate; or
4.2.3.2. Any physical condition uncovered or revealed at the site differs materially from that indicated, reflected or referred to in the Contract Documents,
Then, the Contractor shall promptly, after becoming aware thereof and before performing any Work in connection
therewith (except in an emergency as permitted by paragraph 6.22) notify the City and the Engineer in writing about the
inaccuracy or difference.
4.2.4. ENGINEER'S REVIEW: The Engineer will promptly review the pertinent conditions, determine the necessity of
obtaining additional explorations or tests with respect thereto and advise the City in writing (with a copy to the Contractor) of the
Engineer's findings and conclusions.
4.2.5. POSSIBLE DOCUMENT CHANGE: If the Engineer concludes that there is a material error in the Contract Documents
or that because of newly discovered conditions a change in the Contract Documents is required, a Change Order will be issued as
provided in Article 10 to reflect and document the consequences of the inaccuracy or difference.
4.2.6. POSSIBLE PRICE AND TIME ADJUSTMENTS: In each such case, an increase or decrease in the Contract Price or an
extension or shortening of the Contract Time, or any combination thereof, will be allowable to the extent that they are attributable to
CC1-971.doc Page 16
any such inaccuracy or difference as described in Section 4.2.3. The Contractor shall meet and obtain approval from the City
Engineer or his/her designee prior to implemenfmg any such change in the Work.
4.3 Physical Conditions - Underground Facilities:
4.3.1. SHOWN OR INDICATED: The information and data shown or indicaXed in the Contract Documents with respect to
existing Underground Facilities at or contiguous to the site is based on information and data furnished to the City or the Engineer by
the owners of such Underground Facilities or by others. Unless it is otherwise expressly provided in the Special Conditions:
4.3.1.1. The City and the Engineer shall not be responsible for the accuracy or completeness of any such information or
data; and,
4.3.1.2. The Contractor shall have full msponsibility for determining the existence of all Underground Facilities, for
reviewing and checking and potholing for all such information and data, for locating all Underground Facilities shown or
indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during
construction, for the safety and protection thereof as provided in paragraph 6.20 and for repairing any damage thereto
resulting from the Work, the cost of all of which will be considered as having been included in the Contract Price.
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 Contractor c0uld not regsonably have been expected to be aware
of, Contractor shall, promptly alter becoming aware thereof and before performing any Work affected thereby (except in an
emergency as permitted by paragraph 6.17.1 ), identify the owner of such Underground Facility and give written notice thereof to
that owner and to the City and the Engineer. The Engineer will promptly review the Underground Facility to determine the extent
to which the Contract Documents should be modified to reflect and document the consequences of the existence of the
Underground Facility, and the Contract Documents will be amended or supplemented to the extent necessary. During such time,
Contractor shall be responsible for the safety and protection of such Underground Facility as provided in paragraph 6.16.1. The
Contractor shall 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
wtfich the Contractor could not reasonably have been expected to be aware of such Underground Facility and subject to acceptance
and approval by the Engineer.
4.4 Reference Points:
4.4. The City shall provide engineering surveys to establish reference points for construction which in the Engineer's judgment
are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work (unless
otherwise specified in the General Requirements), shall protect and preserve the established reference points and shall make no
changes or re-locations without the prior written approval of the City. The Contractor shall report to the Engineer whenever any
reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be
responsible for the accurate replacement or relocation of such reference points by a Registered Professional Land Surveyor
Licensed in the State of Colorado.
4.5 Protection and Restoration of Property and Landscape:
4.5.1. The Contractor and the City shall deliniate the extent of the construction area prior to initiation of the work. The City shall
be responsible for reclamation and revegetation of the property within the delinated area. The Contractor. shall be responsible for
the preservation of all public and private property outside of the delineated area_and shall protect carefully fi.om disturbance or
damage all land and property and shall protect carefully from disturbance or damage all land and monuments and proper~ marks
until the Engineer has witnessed or otherwise referenced their location and shall not remove them until directed.
4.5.2. The Contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the
Work, resulting fi'om 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 Contractor in the execution of the Work, or in consequence of the non-execution thereof by
the Contractor, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such
CC1-971.doc Page 17
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 Engineer.
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 Engineer. However, the fact that areas of vegetation and other environmental features are not marked shall not
necessarily mean that those items are expendable. The Contractor shall perform all his activities in such a manner that the least
environmental damage shall result. Any questionable areas or items shall be brought to the attention of the Engineer for approval
prior to removal or any damage activity. Damage or destruction of unmarked trees or shrubs which could reasonably have been
saved shall therefore be subject to the provisions these General Conditions.
4.5.7. If the fence, staking or marking is knocked down or destroyed by the Contractor, the Architect shall suspend the Work in
whole or in part, until the fence or other protection is repaired to the Engineer's satisfaction at the Contractor's expense. Time lost
due to such suspension shall not be considered a basis for adjustment of Contract Time or for compensation to the Contractor.
4.5.8. If the Contractor disturbs any of the landscape not called for removall he/she shall restore those areas as directed at the
Contractor's expense.
4.5.9. With respect to replacement of trees and shrubs that have been damaged or destroyed, the following conditions shall apply:
4.5.9.1. Trees or shrubs of replaceable size shall be replaced by the Contractor at his/her expense. If he/she fails to do so
within a reasonable length of time as determined by the Engineer and prior to the end of the contract time, the replacement
value of the trees or shrubs will be deducted from any money due to the Contractor. These values shall be based upon
averages derived fi'om current prices of nurseries growing the plants, plus the cost for planting and a guarantee for the first
growing season.
4.5.9.2. 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.
4.5.9.3. Any deduction assessed as liquidated damages under this section shall not relieve the Contractor from liability
for any damages or costs resulting from delays to the City, traveling public or other contractors.
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
Contractor shall at no additional cost to the City conduct tests the Contractor deems necessary to determine the existence of
Hazardous Materials by appropriately licensed Subcontractors or entities. The City shall reimburse the Contractor for the invoice
costs of the tests, only in the event that the Contractor furnishes the City with certified test data and results which confirm the
existence of Hazardons 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 Contractor, 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 ail 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 proper~ 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 Contractor's construction or operation of the Project.
4.6.3. If Hazardous Materials are present on or under the Project right-of-way as a result of any discharge, dumping or spilling
on the Project right-of-way during the term of the Contract by the Contractor or its subcontractors, the Contractor shall at the
CC1-971 .doc Page 18
Contractor's sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed from the Project
fight-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 reinfomement necessary to restore the weight-bearing capacity of the Project
fight-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, afl;er the Project Site is tumed over to the Contractor.
4.6.5. The Contractor shall provide the Engineer with a written certification each time materials or equipment is brought onto the
Work site that such materials or equipment do not contain Hazardous Materials.
4.6.6. The Contractor and the City shall cooperate with each other in the prosecution of any clam 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 Contractor Representations
By execufmg the Contract, the Contractor 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, andMaintenance Bonds:
5.1.t. Contractor shall furnish performance, payment, and maintenance Bonds, each in an amount specified in the Special
Conditions as security for the faithful performance and payment of all the Contractor'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 One Year from the date of project closure, except as otherwise provided by the Contract Documents. The
Contractor 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 Hold'mg 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 Contractor 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, Contractor shall within five days thereafter substitute
another Bond and Surety, both of which must be acceptable to the City.
5.2 Indemnification:
The Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and
aga'mst all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which
arise out of or are in any manner connected with this contract, to the extent that such injury, loss, or damage is caused in whole or in
part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other
fault of the Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or
of any subcontractor of the Contractor, or which arises out of any workmen's compensation claim of any employee of the
Contractor or of any employee of any subcontractor of the Contractor. The Contractor 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 Contractor, or at the option
of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such
liability, claims, or demands. The Contractor 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
CC1-971 .doc Page 19
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 Contractor for the
portion of the judgment at~ibutable to such act, omission, or other fault of the Cityl its officers, or employees.
5.3 Contractor's Insurance:
5.3.1. The Contractor 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 Contractor pursuant to Section 5.2 above. Such
insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be
relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 5.2 above by mason 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. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the
minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum
insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and 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 Contractor 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. I;Vorkmen~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 GeneralLiability 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 injtay, broad form property
damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket
contractual, independent contractors, products, and completed operations. The policy shall 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 Contractor'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 Contractor has
no owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Contractor providing
services to the City under this contract.
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 Aspan, shall be excess and not contributory insurance to
that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion
for bodily injury or property damage arising fi.om completed operations. The Contractor 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 Contractor'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 trader the policies
shall not be canceled, terminated or materially changed until at least thirt~ (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:
CC1-971 .doc Page 20
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 Contractor.
and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the pa~ties
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 Contractor.
The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of
any premiums or for assessments under any form of policy 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 Proposer and all deductibles in the above-described insurance policies shall be assumed by and be for the
amount of, and at the sole risk of the Proposer.
Location of operations shall be: "All operations and locations at which work in connection with the referenced project is
done."
Certificates of Insurance for all renewal policies shall be delivered to the Architect at least fiLeen (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 Contractor 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 Contractor to City upon demand, or City may offset the cost
of the premiums against moneys due to Contractor fi'om 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 lnsurance:
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 Depar~ent and are available to Contractor for inspection during normal business hours. City makes no
representations whatsoever with respect to specific coverage offered by CIRSA. City shall provide Contractor reasonable notice of
any changes in its membership or participation in CIRSA.
5.4.2. The parties hereto further understand and ~gree 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 fights, immunities, and protections provided by the Colorado
Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as fi'om time to time amended, or otherwise available to City, its
officers, or its employees. Further, nothing in the Contract Documents shall be construed or interpreted to require or provide for
indenmification of the Contractor 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 - CONTRACTOR'S RESPONSIBILITIES
6.1 GeneralResponsibilities:
6.1.1. The Contractor shall perform all of the Work in conformance with the Contract Documents.
6.1.2. The Contractor covenants and wan'ants 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
CCl-971 .doc Page 21
be responsible for proviffmg completed Work which meets the results required by the Contract Documents, and shall achieve
Substantial Completion ( 100% of the Work) by the Contract Time.
6.1.3. Construction services shall be performed in accordance with those professional standards listed in the Special Conditions
for quality and scope and shall be performed by the entities and persons, Subcontractors and specific personnel identified in the
Contractor'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
Contractor. Nothing contained in the Contract Documents shall be construed to create any obligation or contractual liability running
fi.om the City to any of these persons or entities.
CCI-971 .doc Page 22
6.2 Supervision andSuperintendence:
6.2.1. The Contractor 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
Contmctur shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. The
Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents.
6.2.2. The Cont~?ctor shall keep on the Work at all times during its progress a competent resident superintendent, who shall not
be replaced without written notice to the City and the Engineer except under extraordinary circumstances. The superintendent will
be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given
to the superintendent shall be as binding as if given to the Contractor.
6.3 Labor, Materials and Equipment:
6.3.1. The Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform
construction as required by the Contract Documents. The Contractor 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
Contractor will not permit overtime work or the performance of Work on Saturday, Sunday or any legal holiday without the City's
written consent given after prior written notice to the Engineer.
6.3.2. Unless otherwise specified in the Specific Conditions or Specific Provisions, the Contractor 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 Engineer, the Contractor shall furnish satisfactory evidence (including reports of requited 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 Engineer, or any of the Engineer's consultants, agents or
employees, any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to
undertake responsibility contrary to the provisions of paragraph 9.10.1. or 9.10.2.
6.4- 6.6 Reserved
6. Z Worlt Schedule:
6.7.I. The Contractor shall submit to the Engineer for acceptance such schedule of work progress reports, estimates, records, and
other data .as the City may require concerning work performed or to be performed.
6.7.2. Prior to beginning of Work and or before the Pre-constmctinn Conference, the Contractor shall submit schedules showing
the order in which he/she proposed to carry on the Work, including dfites at which he/she will start the various parts of the Work,
estimated date of completion of each part.
6.8 Substitutes of"or-equal" Items:
6.8.1. Whenever materials or equipment are specified or described in the Contract Documents by using the name of a proprietary
item or the name ora particular Supplier the naming of the item is intended to establish the type, function and quality required.
Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other Suppliers may be
accepted by the engineer if sufficient information is submitted by the Contractor to allow the Engineer to determine that the material
or equipment proposed is equivalent or equal to that named. The Engineer will include the following as supplemented in the
General Requirements. Requests for review of substitute items of material and equipment will not be accepted by the Engineer
fi.om anyone other than the Contractor. If the Contractor wishes to furnish or use a substitute item of material or equipment, the
Contractor shall make written application to the Engineer for acceptance thereof, certifying that the proposed substitute will
perform adequately the functions and achieve the results called for by the 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
CC1-971.doc Page 23
proposed substitute will not prejudice the Contractors achievement of Substantial Completion on time, whether or not acceptance
oftbe 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 fi.om that specified will be identified in the application and available maintenance, repair and replacement service will be
indicated. The application will also contain an itemized estimate of all costs that will result directly or indirectly fi'om acceptance of
such substitute, including costs of redesign and claims of other contractors affected by the resulting change, all of which shall be
considered by Architect in evaiuat'mg the proposed substitute. The Engineer may require the Contractor to furnish at Contractor's
expense add!tional 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 Contractor may furnish or utilize a substitute means, method, sequence, technique or procedure of constmction
acceptable to the Eng'meer. The procedure for review by the Engineer shall be similar to that provided in paragraph 6.8.1.
6.8.3. The Engineer will be allowed a reasonable time with'm which to evaluate each proposed substitute. The Engineer will be the
sole judge of acceptability, and no substitute will be ordered, installed or utilized without the Engineer's prior written acceptance
which will be evidenced by an approved Shop Drawing. The City may require the Contractor to furnish at the Contractor's expense
a special performance guarantee or other surety with respect to any substitute. The Engineer will record time required by the
Eng'mear and the Engineer's consultants in evaluat'mg substitutions proposed by the Contractor and in making changes in the
Contract Documents occasioned thereby. Whether or not the Engineer accepts a proposed substitute, the Contractor shall
reimburse the City for the charges of the Engineer and the Engineer's consultants for evaluating each proposed substitute.
6.9 Subcontractors, Suppliers and Others:
6.9.1. The Contractor shall not employ any Subcontractor, Supplier or other person or organization (including those acceptable
to the City and the Eng'meer as indicated in paragraph 6.9.2), whether initially or as a substitute, against whom the City or the
Engineer may have reasonable objection.
6.9.2. If the Special Conditions require the identity of certain Subcontractors, Suppliers or other persons or organizations
including those who are to furnish the principal items of materiais and equipment to be submitted to the City in advance of the
specified date prior to the Effective Date of the Agreement for acceptance by the City and the Engineer and if the Contractor has
submitted a list thereof in accordance with the Special Conditions, the City's or the Engineer's acceptance (either in writing or by
failing to make written objection thereto by the date indicated for acceptance or objectinn in the Proposal 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 al~er due investigation, in which case the Contractor shall submit an acceptable substitute, the Contract
Price will be increased by the difference in the cost occasioned by such substitution and an appropriate Written Notice of
Amendment signed. No acceptance by the City or the Engineer of any such Subcontractor, Supplier or other person or organization
shall constitute a waiver of any fight of the City or the Engineer to reject Defective Work.
6.9.3. The Contractor shall be fully responsible to the City and the Engineer for all acts and omissions of the Subcontractors,
Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with
Contractor just as Contractor is responsible for Contractor's own acts and omissions. Nothing in the Contract Documents shall
create any contractual relationship between the City or the Engineer and any such Subcontractor, Supplier or other person or
organization, nor shall it create any obligation on the part of the City or the Engineer to pay or to see to the payment of any moneys
due any such Subcontractor, Supplier or other person or organization except as may 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 Contractor in
dividing the Work among Subcon~actors or Suppliers or delineafmg the Work to be performed by any specific trade.
6.9.5. All Work performed for Contractor by a Subcontractor will be pursuant to an appropriate agreement between the
Contractor and the Subcontractor which specifically binds the Subcontractor to the Applicable terms and conditions of the Contract
Documents for the benefit of the City and the Engineer and contain waiver provisions as required by Section 5.3. The Contractor
shall pay each Subcontractor a just share of any insurance moneys received by the Contractor on account of losses.
6.10 Subcontracting and Percentage of Work Awarded to Subcontractor(s):
6.10.1. The Contractor may utilize the services of specialty Subcontractors on those parts of the
CCI-971 ,doc Page 24
Work, which under normal contracting practices, are performed by specialty Subcontractors.
6.10.2. The Contractor shall not award Work to Subcontractor(s), in excess of for~ nine percent (49%) of the Contract Price.
This condition shall be a minimum standard for a qualified Prime Contractor to perform within the City rights of ways.
6.11 Patent Fees and Royalties:
The Contractor 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. Contractor shall indemnify and hold harmless the City and the Engineer and anyone directly or indirectly employed
by either of them from and against all claims, damages, losses and expenses (including attorney's fees and court costs) arising out of
any infi'ingement of patant rights or copyrights incident to the use in the performance of the Work or resulting fi'om 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:
The City shall be responsible for obtaining any development permits and licenses initially required for the project. If fu~har
permits are required because ora Change Order: the Contractor shall obtain and pay for all construction permits and licenses. The
City shall assist the Contractor, when necessary, in obtaining such permits and licenses. The Contractor shall pay all governmental
charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of opening of Proposals on
the Effective Date of the Contract. The Contractor shall pay all charges of utility City's for connections to the Work, and the City
shall pay all charges of such utility owners for capital costs related thereto such as plant inveslment fees.
6.13 LawsandRegulations:
6.13.1. the Contractor shall give all notices and comply with all Laws and Regulations applicable to furnishing and performance
of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither the City nor the Engineer
shall be responsible for monitoring the Cuntmctor's compliance with any Laws or Regulations.
6.13.2. If the Contractor observes that the Specifications or Drawings are at variance with any Laws or Regulations, the
Contractor shall give the Engineer prompt written notice thereof, and any necessary changes will be authorized by one of the
methods indicated in paragraph 3.4. If the Contractor performs any Work knowing or having reason to know that it is contrary to
Laws or Regulations, and without such notice to the Engineer, the Contractor shall bear ali costs arising therefrom.
CC1-971 .doc Page 25
6.14 T~es:
The Con,actor 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 ~axes 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
Contractor shall not be reimbursed separately for any taxes which may apply except as provided in the Contract Documents and the
Contractor shall be responsible for all taxes which may apply. The City is tax exempt fi.om Federal Excise Tax under Chapter 32 of
the Internal Revenue Code. The City is exempt fi.om such taxes under registration numbers 98-02624. The Contractor and its
Subcontractors shall apply to the Colorado Department of Revenue for a Certificate of Exemption indicating that the Contractor or
Subcontractor% 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 Contractor shall confine construction equipment, the storage of materials and equipmem and the operations of
workers to the Project site and land and areas identified in, and permitted by, the Contract Documents and other land and areas
permitted by Laws and Regulations, rights-of-way, permits and easements, and shall not unreasonably encumber the premises with
construction equipment or other materials or equipment. The Contractor 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 or the Engineer by any such owner or occupant because of the performance
of the Work, Contractor shall promptly settle with such other party by agreement or otherwise resolve the claim by law. The
Contractor shall, to the fullest extent permitted by Laws and Regulations, indemnify and hold the City and the Engineer harmless
from and against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and
other professionals and court costs) arising directly, indirectly or consequentially out of any action, legal or equitable, brought by
any such other party against the City or the Engineer to the extent based on a claim arising out of the Contractor's performance of
the Work.
6.15.2. During the progress of the Work, the Contractor 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 Contractor 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 Contractor shall restore to original condition all
property not designated for alteration by the Contract Documents.
6.15.3. The Contractor shall not load or permit any part of any structure to be loaded in any manner that will endanger the
stmctare, nor shall the Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it.
6.16 RecordDocuments:
The Contractor 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 Engineer for reference. Upon completion of the Work, these
record documents, samples and Shop Drawings will be delivered to the Engineer for the City.
6.17 SafeO~ and Protection:
6.17.1. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in
connection with the Work. The Contractor 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 offthe site; and
CCl-971.doc Page 26
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 Contractor 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 Contractor 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.I7.1.2 or 6.17.1.3 caused,
directly or indirectly, in whole or in part, by the Contractor, any Subcontractor, Supplier or any other person or organization
directly or indirectly employed by any of them to perform or finnish any of the Work or anyone for whose acts any of them may be
liable, shall be remedied by the Contractor. The Contractor'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 Eng'meer has issued a notice to the City and the Contractor 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 Contractor 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 accidants including confined space entry and work in the confmed 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 Contractor,
without special instruction or authorization from the Engineer or the City, is obligated to act to prevent threatened damage, injury or
toss. The Contractor shall give the Engineer prompt written notice if the Contractor believes that any significant changes in the
Work or variations from the Contract Documents have been caused thereby. If the Engineer determines that a change in the
Contract Documents is required because of the action taken in response to an emergency, a written order will be issued to document
the consequences of the changes or variations.
6.19 Shop Drawings and Samples:
6.19.1. Afier checking and verifying all field measurements and after complying with applicable prOcedures specified in the
Contract Documents, the Contractor shall submit to the Engineer for review and approval in accordance with the approved schedule
of Shop Drawing submissions prior to Pre-construction Conference, or for other appropriate action if so indicated in the Special
Conditions, three (3) copies (unless otherwise specified) of all Shop Drawings, which will bear a stamp or specific written
indication that the Contractor has satisfied the Contractor's responsibilities under the Contract Documents with respect to the review
of the submission. All submissions will be identified as the Engineer may require. The data shown on the Shop Drawings will be
complete with respect to quantities, dimensions, specified performance and design criteria, materials and similar data to enable the
Engineer to review the information as required.
6.19.2. The Contractor shall also submit to the Engineer for review and approval with such promptness as to cause no delay in
Work, all samples required by the Contract D0~uments. All samples will have been checked by and accompanied by a specific
written indication that the Contractor has satisfied the Contractor's responsibilities under the Contract Documents with respect to the
review of the submission and will be identified clearly as to material, Supplier, pertinent data such as catalog numbers and the use
for which intended.
6.19.3. Before submission of each Shop Drawing or sample, the Contractor shall have determined and verified all quantities,
dimensions, specified performance criteria, installation requirements, materials, catalog numbers and similar data with respect
thereto; and reviewed or coordinated each Shop Drawing or sample with other Shop Drawings and samples and with the
requirements of the Work and the Contract Documents.
6.19.4. At the time of each submission, the Contractor shall give the Engineer specific written notice of each variation that the
Shop Drawings or samples may have from the requirements of the Contract Documents, and, in addition, shall cause a specific
notation to be made on each Shop Drawing submitted to the Engineer for review and approval of each such variation.
6. l 9.5. The Engineer will review and approve with reasonable promptness Shop Drawings and samples, but the Engineer's review
and approval will be only for conformance with the design concept of the Project and for compliance with the information given in
the Contract Documents and shall not extend to means, methods, techniques, sequences or procedures of construction (except
CC1-971.doc Page 27
where a specific means, method, technique, sequence or procedure of construction is indicated in or required by the Contract
Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not
indicate approval of the assembly in which the item functions. The Contractor shall make corrections required by the Engineer, and
shall return the required number of corrected copies of Shop Drawings and submit as reqtftred new samples for review and
approval. The Contractor shall direct specific attention in writing to revisions other than the corrections called for by the Engineer
on previous submittals.
6.19.6. The Engineers review and approval of Shop Drawings or samples shall not relieve the Contractor fi.om responsibility thr
any variation fi.om the requirements of the Contract Documents unless the Contractor has in writing called the Engineer's attention
to each such variation at the time of submission as required by paragraph 6.19.4 and the Engineer has given written approval of
each such variation by a specific written notation thereof incorporated in or accompanying the Shop Drawing or sample approval;
nor will any approval by the Engineer relieve the Contractor fi.om responsibility for errors or omissions in the Shop Drawings or
from responsibility for having complied with the provisions of paragraph 6.19.3.
6.19.7. Where a Shop Drawing or sample is required by the Specifications, any related Work performed prior to the Engineer's
review and approval of the pertinent submission will be the sole expense and responsibility of the Contractor.
6.20 Mechanics~ Liens:
6.20.1. The Contractor covenants and agrees that, to the extant permitted by law, to waive its rights on all undisputed work upon
receipt of payment for that work and agrees to resolve liens filed by its subcontractors and suppliem within 30 days. The Contractor
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 aga'mst 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 Contractor also agrees as above for ail of its Subcontractors, including but not Ihnited to suppliem and employees. If
any of the Conmtctor'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 Contractor agrees to cause claims or liens to be
satisfied, removed or discharged at its own expense by bond, payment or otherwise with'm thir~ (30) consecutive calendar days
from he date of the filing, and upon the Contractor's failure to do so the City shall have the fight, 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 Contractor, the expense to include legal fees and disbursements. The
Contractor shall give a copy of Claim Release form to all Subcontractors and suppliers and shall include these provisions in all
written contracts with Subcontractors, or give written notice to all Subcontractors, suppliers or other persons having oral
agreements with the Contractor.
6.20.3. The Contractor 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. The Contractor shall pay Subconlractors within Ten (10) consecutive
calendar days of receipt of a progress payment fi.om the City. The Contractor 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 Contractor, 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 Contractor 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
Contractor and the City may otherwise agree in writing. The Contractor may stop work 30 days at~er submission ora payment
request, due to lack of payment fi.om the City.
6.22 Contractor Facilities:
All temporary contractor 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, (0
temporary roads and paving, (g) construction aids and miscellaneous facilities, (h) temporary power distribution, (i) temporary
lighting, (j) temporary toilet facilities. All operations of the Contractor, including storage of materials, upon the City's premises
CC1-971 .doc Page 28
shall be confined to areas authorized or approved by Owner in writing. Temporary buildings, storage sheds, shops, offices, may be
erected by the Contractor only with the written approval of the City end shalI be built or provided with labor end materials
furnished by the Contractor without expense to the City. Such tempormy buildings and utilities shall remain the property of the
Contractor end shall be removed by it at its expense upon completion of the Work.
ARTICLE 7 - OTHER WORK
7.1 Related Work at Site:
7.1.1. The City may perform other work related to the Project at the site by the City's own forces, have other work performed by
utility owners or let other direct contracts therefor which shall contain General Conditions similar to these. The Contractor shall
perform end coordinate his/her activities with other Contractors to avoid Conflict end minimize dismptinus~
7.1.2. The Contractor shall afford each utility owner and other contractor 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 end safe access to the site end a reasonable opportunity
for the introduction end storage of materials and equipment end the execution of such work, and shall properly connect end
coordinate the Work with theirs. The Contractor shall do all cutting, fitting and patching of the Work that may be required to make
its several parts come together properly end integrate with such other work. The Contractor shall not endenger 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 end responsibilities of Contractor under this paragraph are for the benefit of
such utility owners and other contractors to the extent that there are comparable provisions for the benefit of the Contractor in said
direct contracts between the City end such utility owners and other contractors.
7.1.3. If eny part of the Contractor's Work depends for proper execution or results upon the work of eny such other contractor or
utility owner (or the City), the Contractor shall inspect end promptly report to the Engineer in writing eny delays, defects or
deficiencies in such work that render it unavailable or unsuitable for such proper execution and results. The Contractor's failure to
report such conditions wilt constitute en acceptance of the other work as fit and proper for integration with the Contractor's Work
except for latent or non-appareut defects end 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 orgenization of the
activities among the various prime contractors may be identified in the Special Conditions} end the specific matters to be covered
by such authority and responsibility may be itemized, end the extent of such authority end responsibilities may be provided, in the
Special Conditions. Unless otherwise provided in the Special Conditions; neither the City nor the Engineer shall have eny authority
or responsibility in respect of such coordination.
ARTICLE 8 - CITY'S RESPONSIBILITIES
8.1. The City shall issue all communications to the Contractor through the Engineer or his/her designated person.
8.2. The City shall furnish the data required of the City under the Contract Documents promptly and shall make payments to
the Contractor through processing of the monthly Progress Pay Estimate forms within 30 days fi.om the cut-off date for a pay
estimate form.
8.3. The City represents that en 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 eny Chenge Order or execute a Written
Amendment requiring additional compensable work, which work causes the aggregate amount appropriated by the City, unless the
Contractor is given a written assurance that a lawful appropriations to cover the costs of the additional work shall be made.
ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION
9.1 CiOFs Representative:
CCl-971 .doc Page 29
The Engineer shall be the City's representative during the construction period. The duties and responsibilities and the limitations of
authority of the Engineer as the City's representative during construction are set forth in the Contract Documents and shall not be
extended without written consent of the City and the Engineer.
9.2 Visits to Site:
The Engineer shall make visits to the site at intervals appropriate to the various stages of construction to observe the progress and
quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with the Contract Documents.
The Engineer shall make on-site inspections to observe the quality or quantity of the Work. The Engineer's efforts will be directed
toward providing for the City a greater degree of confidence that the completed Work will conform to the Contract Documents. On
the basis of such visits and on-site observations, the Engineer will keep the City informed of the progress of the Work and will
endeavor to guard the City against defects and deficiencies in the Work.
9.3 Project Representation:
If the City and the Engineer agree, the Engineer will furnish a Resident Project Representative to assist the Engineer in observing
the performance of the Work. The duties, responsibilities and limitations of authority of any such Resident Project Representative
and assistants will be to ensure conformance of work with specifications provided in the Special Conditions. lfthe City designates
another agent to represent the City at the site who is not the Engineer's agent or employee, the duties, responsibilities and
limitations of authority of such other person will be as provided in the Special Conditions.
9.4 Clarification and Interpretations:
The Engineer will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract
Documents (in the form of Drawings or otherwise) as the Engineer may determine necessary, which shall be consistent with or
reasonably inferable fi.om the overall intent of the Contract Documents. If a written clarification or interpretation justifies an
increase in the Contract Price or an extension of the Contract Time, the Contractor shall meet with the Engineer and resolve the
issue. All such requests or claims shall be submitted to the City Engineer.
9.5 Authorized Variations in Work and Minor Contract Revisions:
The City Engineer may request or authorize minor variations in the Work from the requirements of the Contract Documents which
do not involve an adjusmaant 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
Contractor who shall perform the Work involved promptlyl If the Contractor believes that a field order justifies an extension of the
ConWact Time and the parties are unable to agree as to the extent thereof, the Contractor may make a claim therefor as provided
herein.
9.6 Rejecting Defective Work:
The Engineer will have authority to disapprove or reject Work which the Engineer believes to be Defective, and will also have
authority to require special inspection or testing of the Work as provided herein below, whether or not the Work is fabricated,
installed or completed.
9. 7. Shop Drawings, Change Orders and Payments:
9.7. l. In connection with the Engineer's responsibility for Shop Drawings and samples, see paragraphs 6.19.1. through 6.20.1.
inclusive.
9.7.2. In connection with the Engineer's responsibilities as to Change Orders, see Article 10 and Article 1 l.
9.7.3. In connection with the Engineer's responsibilities in respect of request for Payment, etc., see Aaticle 14.
9.8 Decisions on Disputes:
9.8.1. The Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of
the Work thereunder. Claims, disputes and other matters raised by Contractor relating to the acceptability of the Work or the
CCl-971.doc Page 30
interpretation of the requirements of the Contract Documents pertaining to the performance and furnishing of the Work and claims
under Articles 11 and 12 in respect to changes in the Contract Price or Contract Time shall be referred initially to the Engineer in
writing with a request for a formal decision in accordance with this paragraph, which the Engineer will render in writing within a
reasonable time. Written notice of each such claim, dispute and other matter by the Contractor will be delivered to the Engineer
promptly (but in no event later than thirty days) aiter the occurrence of the event giving rise thereto, and written supporting data will
be submitted to the Engineer and the City within sixty days after such occurrence unless the Engineer allows an additional period of
time to ascertain more accurate data in support of the claim.
9.8.2. The rendering of a decision by the Engineer pursuant to paragraph 9.8.1. with respect to any such claim, dispute or other
matter shall be a conffition precedent to any exercise by the Contractor of such fights or remedies as the Contractor may otherwise
have under the Contract Documents or by Laws or Regulations in respect of any such claim, dispute or other matter. The City shall
not be bound by any initial interpretation by the Engineer of the requirements of the Cunmact Documents, judgment on the
acceptability of the Work thereunder, or formal decision made by the Engineer in accordance with paragraph 9.8.1. Any dispute
not resolved by the initial decision of the Engineer shall be decided by the City, who shall reduce the decision in writing and furnish
a copy thereof to the Contractor and the Engineer. 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 Contractor shall proceed diligently
with the performance of the Work and in accordance with the Engineer's interpretation.
9.9 Reserved
9.10 Limitations on Engineer's Responsibih'ties:
9.10.1. Neither the Engineer's anthority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made
by the Engineer in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the
Engineer to the Contractor, 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 D0cuments 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 Engineer as to the Work,
it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the
Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective shall not be
effective to assign to the Engineer any duty or authority to supervise or direct the furnishing or performance o£the Work or any
duty or authority to undertake responsibility contrary to the Contract Documents.
ARTICLE 10 - CHANGES IN TIffE WORK
10.1 City lnitiated Changes
10.1.1. The City may require, without notification to sureties, the Contractor to perform changes, additions or deletions to the
Work at anytime after execution of the Contract without invalidating the Contract. Changes shall be accomplished as set forth in
Section 3.2, above.
10.1.2. The Contractor shall promptly perform changes in the Work in accordance with applicable provisions of the Contract
Documents, unless otherwise provided in a Change Order or Amendment to the Contract for Constructiun.
10.1.3. The following procedure shall be followed for the City notifying the Contractor of proposed City initiated changes. The
Engineer shall issue a notice informing the Contractor of a planned change in the Work and its scope; and requesting the
Contractor's detailed price proposal. The Contractor, at no expense to the City, shall submit a priced proposal for performing the
proposed change in the Work. The Contractor, within Ten (10) consecutive calendar days after receiving the Notice of Change~ or
such longer time which the Engineer in his/her discretion has granted, shall provide the Engineer With a complete and itemized
proposal which includes the estimated increase or decrease in the Con,act Price and/or in the Contract Time attributable to the
planned changes on the criteria and methods described in Article 11. The Contractor 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 Contractor shall participate with the City in prompt joint analysis and negotiations to finalize a Change Order, if
necessary.
CCl-971 .doc Page 3'1
10.2 IVritten Notice of Change
10.2.1. A Written Notice of Change may be used when:
a) The City determines that the Contractor 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 Contractor have not completed their negotiation and roached agreement on all of the terms of a
Change Order, but the City requires the Contractor to proceed without such agreement.
10.2.2. Upon receipt of a Written Notice of Change the Contractor shall promptly proceed with performing the change in the
Work. Additionally, the Contractor shall comply with all the requirements of 10.3 of these General Conditions.
10.3 ChangeOrder
When the Contractor 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 Contractor Change Request
10.41. If the Contractor: (i) receives any oral or written instructions, directives or interpretations of Contract Documents, or
determinations from the Engineer 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 Contractor
shall give the Engineer prompt written notice of such matters in a letter or notice denominated "Contractor Change Request".
10.4.2. All Contractor Change Requests shall be dated, numbered sequentially, and shall describe the action or event which the
Contractor believes may require an extension in time or price. The Contractor shall also provide descriptions of possible
Contractor actions or solutions to minimize the cost of the Contractor 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 ordem, instructions, directives, interpretations, determinations, or the discovery of any errors or omissions
in the Contract Documents, a Contractor Change Request shall be submitted before the Contractor 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 Contractor 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 Contractor Change Request shall be submitted as soon as the Contractor has knowledge of the
delay, but in no event more than Ten (1 O) consecutive calendar days therefrom.
10.8.6. With respect to any matters or circumstance which the Contractor believes would require a change, including delays, a
Contractor Change Request shall be submitted as soon as the Contractor has knowledge of the matter or circumstance, but in no
event more than Ten (10) consecutive calendar davs after the Contractor becomes aware of such circumstance or matter.
10.5 Down Time:
The Contractor may be granted time extension for down time. No other compensation of any kind shall be made to the Contractor
for down time. Equipment failure, lack of adequate labor or tools or materials to perform the Work shall not constitute down time.
10.6 Submittal Requirements and I~Yaiver of Claims
10.6.1. If the Contractor does not submit a Contractor Change Request within the time required above, any action by the
Contractor related to such order, direction, instruction, interpretation, determination, design error or omission, or other matter,
CCl-971 .doc Page 32
including delays or differing site conditions, will not be considered by the City as a change to the Work and the Contractor waives
any claim for an adjustment on the Contract Price or the ConWact Time.
10.6.2. The Contractor shall, within Ten (10) consecutive calendar days submit in detail, a Contractor Change Request, and
provide the Eng'meer 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 Contractor
Change Request. If the Contractor does not submit its itemized proposal within the time described above or within such extension
which the Engineer, 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 Contractor Change Request is denied by the Engineer, in whole or in part, any clam for an increase in the Contract
Price or Contract Time arising out of the act or event described in the Contractor Change Request is waived unless the Contractor
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 ContractPriceAdj#sOnents.
All adjustments to the Contract Price shall be determined by using one or more of the following methods:
11.1.1 A negotiated lump sum for work items that cannot be itemized. The Contractor shall promptly provide sufficient
substantiating data, including calunlations, measurements, cost records, production rates, equipment types and capacity, labor costs
by craR and other information which the City may reasonably require the Contractor to produce in order to permit the City to
evaluate the Contractor's lump sum change order proposals. In pricing this proposal, the Contractor 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 subsequantly 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 TimeAdjustments.
11.2.1. Any extension of the Contract Time must be requested in a Contractor 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 Contractor 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 Contractor'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 Contractor and did not result from the acts or omissions of the Contractor
and, provided further, that they Contractor has taken reasonable actions to mitigate or prevent further delays resulting from such
causes.
11.2.3. If abnormal weather conditions are the basis for a claim for an extension of the Contract Time, such claim shall be
documented on the City of Aspen Engineering Department'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 Contractor is able to work Sixty Percent (60%) or more of its scheduled work rome shall not be
counted as an abnormal weather day for purposes of calculating weather miated time extensions.
11.2.4. The Contractor 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
CC1-971 .doc Page 33
such delays. In no event shall the Contractor be entitled to recover any delay costs caused by the acts or omissions of the
Contractor, its employees or agents.
11.2.5. If the Contractor believes that it has suffered delays in performing the Work that are caused by acts or omissions of the
City, the Contractor may submit a Contractor Change Request with detailed justifications acceptable to the Engineer. Failure of the
Contractor to comply with all requirements shall constitute a waiver of any claim for damages resulting from such delays.
11.3 ForceAceount Work.
11.3.1 In situations where the cost or time for performing a required change cannot be adequately defined or agreed upon but the
changed Work must proceed, the City may direct the Contractor to perform the Work on a Fome 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 Contractor 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 that 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 Contractor
shall include hours worked, rotes of pay, names and job classifications for alt 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 Engineer which are signed by the Contractor and the Engineer. Such costs
shall form the basis for determining the maximum amount to be paid the Contractor, but this amotmt 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 fi'om the changed
Work. The worker hours, equipment hoars, and materials installed shall be logged on the City of Aspen Engineering Department's
Dally Construction Log form for every day the work is performed.
11.4 Cost and Pricing Data
11.4.1 Certificate of Current Cost or Pricing Data. The Contractor 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 or and the City that are part of the
proposal.
Firm
Name
Title
Date
· Identify the appropriate number of the Change Notice.
· * Date when pricing negotiations were concluded and pdce 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.
CCt-971.doc Page 34
11.4.2 Vendor Statements. The Contractor 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.
11.4.3 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 Contractor 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.
ARTICLE 12 - Reserved
ARTICLE 13 - WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR
ACCEPTANCE OF DEFECTIVE WORK
13.1 }Farranty:
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 Contractor, at no additional expense to the City, shall remedy damage to equipment, the site, or the buildings or the
contents thereof that 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 ConWactor 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
Contractor shall be responsible for a Two Year term under the Maintenance Bond.
13.1.3.2. Require all warranties to be executed, in writing, for the benefit of the City, if directed by the Engineer or.
13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the Engineer.
13.1.3.4. Assign all warranties and guarantees in writing to the City upon the request of the City.
13.t.4. Notwithstanding anything to the contrary above, the Contractor 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 Contractor, and shall be in conformance with the Technical Specifications and Contractor's Proposal (except in those instances
where the Contractor'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 Contractor within a reasonable time afl:er its
discovery, the Contractor shall thereupon promptly correct such nonconformity to the satisfaction of the City, at the Contractor'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 Contractor's performance by the most expeditious means available, the cost of cover or correction
shall be charged to the Contractor.
CC1-971.doc Page 35
13.1.4.1. The preservation, packaging, packing, and marking; and ~ ~6Jc~amti0n 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 Contractor.
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 Contractor 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 werranties 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 Contractor.
13.1.7. The above warranties or other warranties agreed to by Contractor shall not limit the City's rights under other provisions of
this Article with respect to latent defects, gross mistakes, or fi.aud.
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 Contractor'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 shall run fi.om the date of
delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever is later.
13.2 Access to World:
The Engineer and the Engineer's representatives, other representatives of the City, testing agencies and governmental agencies with
jurisdictional interests shall have access to the Work, at any time for their observation, inspecting and testing. Contractor shall
provide proper and safe conditions for such access.
13.3 Tests and Inspections:
13.3.1. The Contractor shall cooperate with material testing persons and firms, and for required inspections, and compliance and
approval tests for the Work performed by the Contractor or his/her SubconU'actor(s).
13.3.2. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereo~) to specifically be
inspected, tested or approved, the Contractor shall assume full responsibility therefore, pay all costs in connection therewith and
furnish the Engineer the required certificates of inspection, testing or approval. The Contractor shall also be responsible for and
shall pay ali costs in connection with any inspection or Re-testing required in connection with the City's or the Engineer's
acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of materials or equipment
submitted for approval prior to The ConU'actofs purchase thereof for incorporation in the Work. The cost of all inspections,
testing, re-testing and approvals in addition to the above that are required by the Contract Documents shall be paid by the
Contractor (unless otherwise specified). The City will conduct and pay for the conformance tests on materials installed in-place,
and the Contractor shall pay for re-testing of all failing and non-conforming materials thereafter.
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 Engineer.
13.3.4. If any Work (including the work of othem) that is to be inspected, tested or approved is covered without written
concurrence of the Engineer, it must, be uncovered for observation. Such uncovering and testing when required by the Engineer
shall be at the Contractor's expense.
13.3.5. Neither observations by the Engineer nor inspections, tests or approvals by others shall relieve the Contractor fi.om the
Contractor's obligations to perform the Work in accordance with the Contract Documents.
CC1-971 .doc Page 36
13.4 Uncovering Work:
13.4.1. If any Work is covered cun~ary to the written request of the Engineer it must, if requested by the Engineer, be uncovered
for the En~neer's observation and replaced at the Contractor's expense.
13.4.2. If the Engineer cunsiders it necessary or advisable that covered Work be observed by the Engineer or inspected or tested
by others, the Contractor, at the Engineer's request, shall uncover, expose or otherwise make available for observation, inspection
or testing as the Engineer 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 Contractor shall bear all direct; indirect and consequential costs of such uncovering,
exposure, observation, inspection and testing and Of satisfactory reconstmcfiun, (including but not limited to fees and charges of
engineers, architects, attorneys and other professionals), and the City shall be entitled to an appropriate decrease in the Contract
Price.
13.5 City May Stop The }York:
If the Work is defective, or the Contractor 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 Contractor 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 Contractor or
any other party.
13.6 Correction or Removal of Defective }Fork:
If required by the Engineer or the City, the Contractor shall promptly, as directed, either correct all Defective Work, whether or not
fabricated, installed or completed, or, if the Work has bean rejected by the Engineer or the City, remove it from the site and replace
it with non-defective Work. The Contractor shall bear all direct, indirect and consequential costs of such correction or removal
(including but not limited to fees and charges of angineers, architects, attorneys and other professionals) made necessary thereby.
13. 7 Correction Period:
If within One Year afl:er the date of Substantial Completion or such longer period of time as may be prescribed by Laws or
Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of
the Contract Documents, any Work is found to be Defective, the Contractor shall promptly without cost to City and in accordance
with City's written inslructions, 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 Contractor 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 Contractor. 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 replacement shall be warranted for two growing season.
13.8 Acceptance of Defective bVork:
If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to accept it, the City may do so.
The Contractor 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 and
the City Engineer.
13.9 City May Correct Defective Work:
If the Contractor fails within Ten (10) consecutive calendar days afier written notice of the Engineer or the City to proceed to
correct and to correct Defective Work or to remove and replace rejected Work as required by the Engineer or the City in
accordance with paragraph 13.6., or if the Contractor fails to perform the Work in accordance with the Contract Documents, or if
the Contractor fails to comply with any other provision of the Contract Documents, the City may, after seven days' written notice to
the Contractor, 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 Contractor
CC1-971.doc Page 37
fi~om all or part of the she, take possession of all or part of the Work, and suspend the Contractor's services related thereto, take
possession of the Contractor'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 Contractor but which are stored elsewhere. The
Contractor 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 Contractor, 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 Contractor's Defective Work.
The Contractor 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 Contractor will
receive no compensation therefore. If required by the City, unauthorized work will be remedied, removed, or replaced by the
Contractor at the Contractor's expense.
ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION
14.1 Determination of Work Value:
The Work quantities recorded on the City of Aspen Engineering Department's Daily Construction Log forms shall serve as the
basis for preparation and justificatiun of the progress payments. Payments to the Contractor shall be prepared on the City of Aspen
Engineering Department's Progress Pay Estimate Form on account of Unit Price Work based on the number of units actually
installed complete in place and transferred fi.om fhe Dally Construction Logs.
14.2 Application for Progress Payment:
14.2.1. Progress payments shall be made once each month as the Work progresses, when the Contractor is performing
satisfactorily under the terms of the Contract Documents. Said payments shall be based upon progress estimates prepared by the
Engineer, of the value of work performed and materials placed in accordance with the Contract Documents and the value of
materials on hand in accordance with these General Conditions. The amount of the progress estimate to be paid to the Contractor
shall be subject to the following:
14.2.1.1 STANDARD RETA1NMENT._ The City shall make a deduction fi.om 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 Engineer may, at his/her discretion, reduce the
retained amount by fifty percent (50%) of the required retainage.
b) Upon one hundred parcent (100%) completiun and acceptance of the project, the Engineer 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.
CC1-971.doc Page 38
14.2.3. LUMP SUM ITEMS. All lump sum Bid items shall be paid on a pro-rata basis determined by the percentage of the total
Work completed or if the Bid item is installed or completed One Hundred Percent (100%) in place and accepted by the Engineer.
14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work, the
Contractor is responsible for prompt payments to all Subcontractors. As a minimum, the Contractor is responsible for prompt
payments to all Subcontractom. As a minimum, the Contractor shall incorporate provisions in all subcontracts to satisfy the
following requirements:
14.2.4.1. The Contractor 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 Contractor
and Subcontractor;
14.2.4.2. Payments to Subcontractors shall be based on all moneys due the Subcontractor under the terms of the contract
between the Contractor and Subcontractor;
The Contractor shall make payments to Subcontractors within 10 days of receipt of the City's payment to the Contractor;
Subcontractors and lower tier subcontractors shall make payments to their subcontractors, according to the requirements
above and shall make payments within I 0 days of receipt of payment from the next higher tier.
14.3 Contractor's tFarran~g of Title:
The Contractor 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 Engineer's Review of Progress Paymen~
14.4.1. The Engineer's recommendation of any payment requested in an Application for Payment will constitute a representation
by the Engineer to the City, based on the Engineer's on-site observations of the Work in progress and on the Engineer's review of
the pay estimate form and the accompanying data and schedules that the Work has progressed to the point indicated; that to the best
of the Engineer's knowledge, information and belief, the quality of the Work is in accordance with the 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 f'mal determination of quantities and classifications for Unit Price Work in the Proposal
form, and to any other qualifications stated in the recommendation); and that the Contractor is entitled to payment of the amount
recommended. However, by recommending any such payment the Engineer will not thereby be deemed to have represented that
exhaustive or continuous on-site inspections have been made to check the quality or the quantity of the Work beyond the
responsibilities specifically assigned to the Engineer in the Contract Documents or that there may not be other matters or issues
between the parties that might entitle the Contractor to be paid additionally by the City or the City to withhold payment to
Contractor.
14.4.2. The Engineer may refuse to recommend the whole or any part of any payment if, in the Engineer's opinion, it would be
incorrect to make such representations to the City. The Engineer may also refuse to recoramend 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 Engineer's opinion to protect the City from loss because:
14.4.2.1. The Work is Defective, or completed Work has been damaged requiring correction or replacement;
14.4.2.2. The Contract Price has been reduced by Written 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 Engineer's actual knowledge of the occurrence of any of the events enumerated in Article 15.
CC1-971.doc Page 39
The City may refuse to make payment of the full amount recommended by the Engineer because claims have been made against the
City on account of the Contractors 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 mount recommended, but the City must give the Contractor
immediate written notice (with a copy to the Engineer) 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 Contractor considers the entire Work ready for its intended use, the Contractor shall coordinate with the City an
inspection of the Work and conduct such tests as required to ensure the Work meets or exceeds all Performance Standards to help
determine the status of completion. If the City does not consider the Work satisfactorily complete, the Engineer shall notify the
Contractor 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 Contractor shall deliver a fully executed Claim Release form to facilitate the project closure.
14.6 Partial Utilization:
Use by the City of any finished part of the Work, which has specifically been identified in the Contract Documents, or which the
City, the Engineer and the Conlraetor agree constitutes a separately functioning and useable part of the Work that can be used by
the City without sig~aificant interference with the Contractor's performance of the remainder of the Work, may be accomplished
prior to Final Completion of all the Work subject to the following:
14.6.1. The City at any time may request the Contractor 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 Contractor agrees, the Contractor will certify to the
City and the City Engineer that said part of the Work is substantially complete.
14. 7 Final Inspections:
Upon written notice from the Contractor that the entire Work or an agreed portion thereof is complete, the City will make a final
inspection with the Engineer and the Contractor and will notify the Contractor in writing of all particulars in which this inspection
reveals that the Work is incomplete or Defeetive} The Contractor 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 Contractor and the Engineer immediately.
14.8 FinaIProgress Payment:
14.8.1. After the Contractor 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 Contractor shall deliver to the
Engineer a fully executed and notarized Claim Release Form and the City Engineering Department will advertise for project closure
and release of the final retainment. The final pay estimate will consist of retainment amount only. Final payment will be released
following a thirty (30) day waiting period 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 Engineer's observation of the Work during construction and final inspection, and the Engineer's review of the
final progress Payment and accompanying documentation - all as required by the Contract Documents, the Engineer represents to
the City that the Work has been completed and the City is satisfied that the Work has been completed and the Contractor'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 ofpersuns, companies, or
corporations that have furnished labor, provisions~ materials, team hire, sustenance, or other supplies used or consumed by
CCl-971 .doc Page 40
Contractor 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 or his duly authorized agents or assigns. Such funds shall not be withheld longer than
Nine~ Days following the date fixed for final settlement as published tmless 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 Contractor 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 Contractor to the Engineer.
Such payment shalI be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of
claims.
14.10 Contractor's Continuing Obligation:
The Contractor'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 Engineer, nor the issuance of a certificate of Substantial
Completion, nor any payment by the City to the Contractor under the Contract Documents, nor any act of acceptance by the City
nor any failure to do so, nor any review and approval of a Shop Drawing or sample submission, nor the issuance of a notice of
acceptability by the Engineer pursuant to paragraph 14.9, nor any correction of Defective Work by the City will constitute an
acceptance of Work not in accordance with the Contract Documents or a release of the Contractor's obligation to perform the Work
in accordance with the Contract Documents.
14.11 LiquidatedDatnages:
14.11.1. TIME FOR COMPLETION: It is hereby understood and mutually agreed, by and between the Contractor and the City,
that the date of beginning Work and the time of completion as specified herein are essential conditions of the Agreement. The
Contractor agrees that said Work shall be prosecuted regularly, diligently, and at such rate 0f progress as will ensure completion
within the time(s) specified. It is expressly understood and agreed, by and between the Contractor 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 completion of the Work,
the new time limit fixed by such extension shall he of the essence of the Contract.
14.11.3. LIQUIDATED DAMAGES: Substantial Completion of the Construction Phase are of paramoant 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 Contractor shall pay to the City the amounts specified in the
Liquidated Damages Form included in the Contract Documents. This particular provision shall not be construed as a penalty upon
said Contractor for failing fully to complete said Work as agreed in the Proposal and Contract Documents nor is it intended, but as
Liquidated Damages to compensate the City for all costs incurred as a result of such breach of Contract.
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 the General Conditions, the Contractor 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 Contractor 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.
CC1-971.doc Page 41
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,
frres, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosioi~s,
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 Fome Majeure shall be remedied with all reasonable dispatch
shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such
settlement is unfavorable to it in the 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 Contractor and will fix the date on which work will be resumed. The Contractor shall resume the Work on
the date so fixed. The Contractor 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 Contractor makes an
approved claim therefor as provided in Article 11. Other Work suspensions such as delayed start or phased construction shall not
entitle the Contractor 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 Contractor commences a voluntary case under any chapter of the Bankrnptcy Code (Title II, United States
Code), as now or hereafter in effect, or if Contractor 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 banlquptcy or insolvency;
15.2.2. If a petition is filed against Contractor under any chapter of the Bankruptcy Code as now or hereafier in effect at
the time of filing, or if a petition is filed seeking any such equivalent or similar relief against Contractor under any other
federal or state law in effect at the time relating to bankruptcy or insolvency;
15.2.3. lfthe Contractor makes a general assignment for the benefit of creditors;
15.2.4. If a trustee, receiver, custodian or agent of Contractor is appointed under applicable law or under contract, whose
appointment or authority to take charge of property of Contractor 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 Contractor's creditors;
15,2.5. Ifthe Contractor admits in writing an inability to pay its debts generally as they become due;
15.2.6. If the Contractor 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 219 as revised from time to time);
15.2.7. If the Contractor disregards Laws or Regulations of any public body having jurisdiction;
CC1-971 .doc Page 42
15.2.8. If the Contractor disregards the authority of Architect; or,
15.2.9. If the Contractor otherwise violates in any substantial way any provisions of the Contract Documents:
The City may, after giving the Contractor (and the surety, if there be one) seven days written notice and to the extent permitted by
Laws and Regulations, terminate the services of Contractor, exclude the Contractor fi.om the site and take possession of the Work
and of all the Contractor's tools, appliances, construction equipment and machinery at the site and use the same to the full extent
they could be used by the Contractor (without liability to the Contractor for trespass or conversion), incorporate in the Work all
materials and equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere, and finish
the Work as the City may deem expedient. In such case the Contractor shall not be entitled to receive any further payment until the
Work is f'mished. If the unpaid balance of the Contract Price exceeds the dirdct, indirect and consequential costs of completing the
Work (including but not limited to fees and charges of engineem, architects, attorneys and other professionals and court and
urbitmtion costs) such excess will be paid to the Contractor. If such costs exceed such unpaid balance, the Contractor shalI pay the
difference to the City. Such costs incurred by the City will be approved as to reasonableness by the Engineer 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 Contractors services have been so terminated by the City, the termination will not affect any rights or remedies
of the City against the Contractor then existing or which may thereafter accrue. Any mtentiun or payment of moneys due the
Contractor by the City will not release the Contractor fi.om liability.
15.2.11. Upon seven days' written notice to the Contractor, 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 Contractor shall be paid for all Work executed and
any expense sustained plus reasonable termination expenses.
15.3 Contractor May Stop Work or Terminate:
If, through no act or fault of the Contractor, 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 Contractor may, upon seven days written notice to the City and the Engineer,
terminate the Contract and recover fi.om 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 Contractor 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.
ARTICLE 16 - MISCELLANEOUS
16.1 Nondiscrimination
During the performance of this Contract, the Contractor agrees as follows:
16.1.1. The Contractor 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 em veteran. The Contractor 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, handi-
capped, a disadvantaged person, or a disabled or Vier 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 Contractor agrees to post in conspicuous
places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscr-
iminatiun clause.
16.1.2. The Contractor, 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.
CC1-971 .doc Page 43
16.1.3. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor,
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 Request for Proposals or negotiation made by the Contractor 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 Contractor 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 Contractor 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 contractor's commiUnents 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 fi.om the computation.
16.3.2. A consecutive calendar day of twenty-four hours measured fi.om midnight to the next midnight shall constitute a day. A
working day is any day; Monday through Friday of each week, also called business day.
16.4 General:
Should the City or the Contractor suffer injmy or damage to person or property because of any error, omission or act of the other
party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim will be made
in writing to the other party within a reasonable time of the first observance of such injury or damage. The provisions of this
paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose.
16.4.1. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the
parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon the Contractor by
the General Conditions, and all of the rights and remedies available to the City thereunder, are in addition to, and are not to be
conslrued 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 ff 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 f'mal payment and temaination 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 Contractor shall be, and shall perform as, an independent the Contractor who agrees
to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor 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 Contractor. 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 Contractor. The Contractor shall be solely and entirely
responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of
the Contract.
CC1-971 .doc Page 44
THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS'
COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON
ANY MONEYS EARNED PURSUANT TO THE CONTRACT.
16.6 Prohibited lnterest:
No membar~ 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 lnterest:
The Contractor 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 commemial or selling agencies maintained by the Contractor for the purpose of securing business.
16.7.1. The Contractor 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 Contract or to any solicitation or proposal therefor.
16.7.2. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf
of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an
inducement for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any means, any person
employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall
comply with all applicable local, state and federal "anti-kickback" statutes or regulations.
16.8 Payments Subject to Annual Appropriations:
If the contract awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the City beyond any
mounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any
contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the
Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated
to provide services or materials for which funds have not been appropriated.
16.9 ContractorAcceptance:
16.9.1. The acceptance by the Contractor of any payment made on the final completion of Work under these General Conditions,
or of any f'mal 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 Contractor, has or may have against the City under the provisions of these
Contract Documents.
16.9.2. No action shall be maintained by Contractor, its successors or assigns, against the City or the Engineer on any claims based
upon or arising out of this Contract or out of anything done in connection with this Contract 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.
16~10 Successors and Assigns
This Contract and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Contractor
respectively and their agents, representatives, employees, successors, assigns and legal representatives. Neither the City nor the
Contractor shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of
the other party.
CC1-971 .doc Page 45
16.11 Third Parties
This Contract does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties
to whom the Contractor 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 Contractor because of any breach hereof or
because of any of the terms, covenants, agreements or conditions herein contained.
16.12 Waiver
No waiver of defanlt 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 Contract 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 Contract, the prevailing party shall be entitled to its
costs and reasonable attorney's fees.
16.15 Waiver of Presumption
This Contract 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 Contract.
16.16 Severability Clause:
If any provision of the Contract is subsequently declared by legislative or judicial authority to be unlawful, unenforceable, or not in
accordance with applicable laws, statutes, and regulations of the United States of America or the State of Colorado, all other
provisions of the Contract shall remain in full force and effect.
16.17 Audit aud Records
The Contractor shall maintain all data and records pe~inent to the Work performed under this Conlract, in accordance with
generally accepted accounting principles, and shall preserve and make available all data and records until the expiration of three (3)
years fi.om the date of final payment under this Contract, or for such longer period, if any, as is required by applicable statute or by
other articles of the ConWact Documents. The authorized representatives of the U.S. Deparlmant of Transportation, Comptroller
General of the United States, the State &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 Contractor 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 Contractor has submitted cost or pricing data in connection with the pricing of any
modification to the Contract, 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, the Engineer or a
representative of the City shall have the right to examine and audit all books, records, documents, and other data of the Contractor
(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.
CCl-971 .doc Page 46
16.18.2. AVAILABILITY: The Contractor 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 Contract, or for any
period, if any, as is required by applicable statute or by other articles of this Contract.
16.18.3. If this Conlxact is completely or partially terminated, the records relating to the Work
terminated shall be made available for three years after any resulfmg 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 Contract shall be made available
until disposition of such appeals, litigation, or claims.
Rev. 1/19/01 (Secs. 14.2.1.1 & 13.1.1)
gcl-971
CCl-971.doc Page 47
THE CITY OF ASPEN
SPECIAL CONDITIONS
For The
Maroon Creek Pedestrian Bridge
1.0 GENERAL:
Clarification of Terms: The Special Conditions are intended to speci~ and provide additional description, clarification, or
conditions that are applicable to this Contract. These Special Conditions amend or supplement the Standard General Conditions of
the Construction Contract and other provisions of the Contract Documents as indicated below. All provisions which are not so
amended or supplemented remain in full force and effect.
2.0 CONTRACT TIME
All Work shall be one hundred percent (100%) complete for this project on or before April 30, 2003. The Contractor shall be
responsible for implementing all improvements by this date.
3.0 LIQUIDATED DAMAGES:
3.01 Liquidated Damages shall be as set forth in the document labeled Liquidated Damages CLD1) included in the
Project Documents.
3.02 In addition, Contractor will be assessed Liquidated Damages of $1,150 per day as prescribed under the
Construction License between the City of Aspen and the Maroon Creek Club Masters Association (MCCMA).
4.0 EXPLORATION REPORTS & MATERIALS TESTING:
Exploration reports and tests of subsurface conditions at the site, are available bom the Design Engineer.
5.0 PROJECT ENGINEER AND THE CITY'S REPRESENTATIVE:
The Project Engineer and the City's Representative for this project shall be a member of the City Parks & Recreation Department
staff or a consultant and shall be designated and changed as necessary by the City Manager of Parks and Recreation.
Unless provided in writing by the City Manager of Parks and Recreation, any on-site Inspector or Representative of the City shall
not have the authority to render any binding decision nor make any binding judgxnents to the Contractor pertaining to any work
which may change the Contract price or time of completion, or change the quality of Work, or change the manner in which the
Work is being performed.
The Project Engineer and the City's Representative shall serve as a means of communication between the City and the Contractor
and shall monitor the Work for the City.
All references in the Contract Documents to "Project Engineer" and "City's Representative" shall refer to the Project Engineer and
the City's Representative named by the City Manager of Parks & Recreation.
6.0 PROGRESS SCHEDULE AND SEQUENCE OF OPERATIONS:
6.01 Within seven (7) days of the date of the contract signing by the City Council, and prior to the pre-constructiun
conference, the Contractor shall submit for review of the City Manager of Parks & Recreation a critical-path
chart shov6ng the estimated progress for the component divisions of the Work and a balanced time breakdown,
showing the esfwaated progress schedule for the entire Project. For purposes of comparison, the Con~ractor shall
submit with each progress pay estimate a form showing the actual rate of progress to date for the component
divisions and for the Project as a whole. The actual rate of progress shown on the form shall only include Work
completed and shall not include stored materials.
6.02 The Contractor shall also submit for approval, prior to the pre-construction conference, a Traffic Control &
Barricading Plan for the project, 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.
CCl-971 .doc Page 48
6.03 The Contractor shall provide a list of emergency (24 hour) contact name(s), addresses and phone numbers to the
City Manager of Parks & Recreation 24 hours prior to the pre-construction conference. Emergency phone calls
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.
6.04 The Contractor shall be responsible for keeping traffic flows on Tiehack Road at all times during and after their
daily work activities. In addition, intermittent interruptions to traffic flow must be kept to a minimum.
7.0 SURVEY CONTROL:
The Contractor shall be responsible for establishing grades fi.om the Bench Mark(s) established and described in the Contract
Documents. At a minimum, the ConWactor shall establish a construction base line, layout staking and cut sheet(s) by an insured
Colorado registered professional land surveyor. The ConWactor shall be responsible for protecting and/ur re-establishing bench
mark control if necessaW during the construction process.
8.0 PROTECTION OF PUBLIC FACILITIES, UTILITIES AND OTHER ADJOINING
PROPERTY:
The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage,
injtmy, 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 Contractor 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 until the utilities have been
located and marked by the utility company. If utility service must be interrupted, the Contractor 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 Manager of Parks & Recreation.
9.0 DAMAGE TO CONSTRUCTION:
The Contractor shall safeguard, until all Work embraced by the Contract is formally accepted, all construction, both complete and
incomplete, against damage and destractionl and should damage result, he will be required to reconstruct at his expense in a manner
conforming to the Plans and Specifications, reconstruction shall be in a manner suitable to the City Manager of Parks & Recreation.
No repair or mitigating option for damaged Work wilt be accepted by the City.
10.0 JOB SITE RESTRICTIONS:
All materials to be removed from the project site or demolished on site, shall be disposed of by the Contractor offthe project site
unless requested otherwise by the City Manager of Parks & Recreation. The Contractor shall conduct access to, staging for and
construction of the project as described within the Contract Documents.
11.0 WORKING HOURS:
Work will normally be permitted between 7:00 a.m. and 7:00 p.m.; other work hours must be approved by the City in writing.
Work will be permitted on Saturday and Sunday, if except that 48 hours prior written notice to the City shall be required to allow
notification of the public. No work is allowed on Saturday and Sunday within the License Premises of the Construction License
with MCCMA, unless as provided under the Construction License.
12.0 DISPOSAL OF HAZARDOUS MATERIALS:
The disposal of any hazardous materials shall be the sole responsibility of the Contractor.
13.0 SALVAGE:
Earth, landscaping debris and other items removed from the site shall become the property of the Contractor, unlass otherwise noted
in the project documents, and disposed of off-site.
14.0 TRAFFIC CONTROL, BARRICADING, AND FLAGGING:
If necessary for the safety the safety of the public, Contractor and City employees, the Work under this Bid item includes design of
a complete traffic control plan for all street segJments to be improved under this Contract by a Certifted Trafftc Control Supervisor
and subject to approval of the City Manager of Parks & Recreation, delivery, pickup, installation, maintenance, protection &
replacement of damaged device, defective steady bmaa or flashing beacons, signs, and adjnsfmg the number of channeliz'mg devices
and signs as necessary to maintain safe Iraffic flows for the duration of this project. The traffic control plan and selected devices
CCl-971 .doc Page 49
and signs shall be based on the MUTCD. Measurement and payment shall be on a pro-rat basis and for the duration of the project
including time extensions granted by the City Manager of Parks & Recreation. No additional payments will made to the
Contractor.
15.0 SUBCONTRACTORS AND SUPPLIERS:
Contractor shall identify in his/her sealed bid the name and address all Subcontractors, Suppliers, and other persons or
organizations that will fitmish the principal items of materials, equipment or labor for this project.
16.0 PAYMENT RETAINAGE:
Retainage on Pay Estimates shall be in accordance with Section 14.2 of the General Conditions.
17.0 WAIVER:
It is expressly understood and agreed that any waiver granted by the City Manager of Parks & Recreation of any term, provision or
covenant of this Contract shall not constitute a precedent nor breach of same or any other terms, provisions or covenants of this
Contract. Neither the acceptance of the Work by the Owner nor the payment of all or part of the sum due the Contractor hereunder,
shall constitute a waiver by the Owner of any claim which the Owner may have against the Contractor or otherwise.
18.0 PRECEDENCE OF THE CONTRACT DOCUMENTS:
The order of precedence of Contract Documents shall be as follows:
1. Addenda
2. Drawings
a. Detailed Drawings
b. Standard Drawings
3. Special Conditions
4. Referenced Technical Specifications
5. Contract for Construction
5. Standard General Conditions
6. Constmctiun License with the Maroon Creek Club
19.0 PERFORMANCE, PAYMENT AND MAINTENANCE BONDS:
The Contractor shall furnish a Performance/Payment and Maintenance Bond, each in an amount equal to one hundred pement
(100%) of the total Contract price as security for the faithfid performance, payment, maintenance obligations of all Contractor's
Work under the Contract Documents. Reference is made to the General Conditions for further requirements for Performance,
Payment and Maintenance Bonds.
20.0 CONTRACT CLOSE-OUT:
Upon completion of all punch list item(s) fi.om the final inspection by the City Parks & Recreation Department and submittal of a
fully executed Claim Release form by the Contractor, the City wilt advert/se twice in the newspaper, and following a ThirlF
(30) Consecutive Calendar DaF waiting period, and with no verified claim against the Contractor by the City up until
the end of this waiting period, the City will declare the project closed and will release the retainage to the Contractor. The Project
close-out final inspection must be recorded on a final Daily Construction log, signed by the City Project Inspector and the
Contractor and prior to advertisement for closure; No liquidated damages will be imposed past the date of substantial completion.
21.0 WARRANTY INSPECTION:
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 Contractor shall provide an authorized representative at such inspection to represent the
Contractor's interests. All defects identified during inspection shall be corrected at Contractor's expense at the direction of the City
immediately. Corrective Work shall be commenced within five (5) consecutive calendar days a~er written notice to Contractor.
22.0 PAYMENT PROVISIONS FOR PILING:
The Contract Price include the cost of piling for 243 linear feet. If a lesser amount of piling is actually required, BTE shall
reimburse the City through a change order at $80.00/linear foot. If a added amount of piling is actdally required, the City shall
reimburse BTE through change order at a cost of$115/linear foot.
CC1-971.doc Page 50
ATTACHMENT D
Construction License with Maroon Creek Club
8
EXHIBIT "A"
DESCRIPTION OF CONSTRUCTION LICENSE AREA
That portion of Parcel Q (Common Area) and Lot 15 (parking lot), Maroon Creek Club as shown on the
attached map; Lot 15, Maroon Creek Club for construction staging only; Tiehack Road from Lot 15 to
State Highway 82 for construction access only.
"Access Areas" on the mapping refers to the public section of Tiehack Road from State Highway 82 to the
eastern Tieback Parking Lot. This area will be for access only to the Staging Area and Construction Area.
"Staging Area" on the mapping refers to the public parking area on Lot 15 of the Maroon Creek Club PUD.
This area will be for construction-related parking, construction staging and temporary storage of
construction materials.
"Construction Area" on the mapping refers to that portion of Common Lot Q that is required to construct
and gain access to construction of the bridge from the Staging Area and the Access Ama.
LU
AREA
EXHIBIT "B"
MAROON CREEK BRIDGE PLANS
0000~
t3'-lOI/z',
~ot Deck to Edge of ~
CL Bridge
Raltlng
Concrete
(Typ,)
MC6 Br ocin,
Double
Bracln
W36 Bracing
TYPICAL SECT[ON
(Looking Ahead Stotion)
ComPuter File Tnformalion lEndex of IRe¥isions
Creolioo Dole: Iailiols: C~)
c~ Lost UodHicol.!on Dote: IOAP~2QOZ IoJtiol$: g
~ 'Full PoIh: U:XCoOXstr XdwgXmr ctypOl,gOb ~ ~
~ ~ O(owin~ File Neme: :: .::XmrctypO1.gOb"
EXHIBIT "C"
CONSTRUCTION SCHEDULE AND ANTICIPATED CONSTRUCTION TRAFFIC GENERATION
FOR THE MAROON CREEK BRIDGE
~ ---~---i----~---i----~-?-Nt---i----~----~---~----~--~-~i-~::~::~ ~ ~'
~ : : : : : : : , i.::.t ,
: : : : : ::::::: ~ ~ ~ : : : , .
EXHIBIT "D"
LETTER OF UNDERSTANDING BETWEEN THE CITY OF ASPEN AND THE MAROON CREEK
CLUB MASTERS ASSOCIATION REGARDING THE PUBLIC USE OF THE TIEHACK PARKING
LOTS
City of Aspen
130 S. Galena Street
Aspen, CO 81611
Maroon Creek Club Masters Association and the
Maroon Creek Limited Liability Company
c/o Brian Martin
Maroon Creek Club
10 Club Circle
Aspen, CO 81611
January 17, 2002
Dear Board Members:
This letter is to memorialize our mutual understanding regarding the public use of the Tiehack Base
Parking Lot, located on Lot 14 of the Maroon Creek Club.
The parties agree that:
· The Tiehack base parking lots are available for daytime use by the public to access the Tiehack ski
area, trails and public lands as described within the public easement granted by the Maroon Creek
Club as a part of its development approval. Attached to this letter is a copy of the public easement
for the Tiehack Base Parking Lots as recorded in Book 730 page 655 of the Pitkin County Clerk
and Recorders Office.
· The Maroon Creek Pedestrian Bridge to be constructed by the City of Aspen wilI connect the
Tiehack Base area with the Iselin Park property. Upon completion, the bridge will be maintained
and operated solely by the City of Aspen for the primary purposes of connecting pedestrian trails
and Nordic ski trails in the area.
· The City of Aspen and the Maroon Creek Club Masters Association agree to work together to
insure that the use of the Tieback Lots remain consistent with the use requirements within the
public easement. This will be done through close communication and coordination between the
two entities regarding this issue. The contact person for the City of Aspen will be the Manager of
Parks and Recreation or his/her designee. The contact person for the LICENSOR will be the Club
Manager for the Maroon Creek Club or his/her designee. In addition to providing close
communication and coordination concerning the parking lots, the parties agree to implement the
following:
The City of Aspen agrees to request the permission of the Maroon Creek Masters Club Board of
Directors to utilize the parking lots for overflow parking related to any special event that may be
conducted at the Iselin Park Recreational Complex. The City shall obtain this approval from the
Board of Directors prior to using the parking lots in this capacity. Any request wiI1 include a
description of the need for use of the parking lot(s), a schedule for said use and a parking/traffic
management plan
· If the use of private property or private roads in the Maroon Creek Club occurs by the general
public, the Maroon Creek Club Masters Association agrees that it will be responsible for any
measures it feels is appropriate to stop said use from occurring.
· The City of Aspen agrees to keep the Maroon Creek Pedestrian Bridge unlighted and to inform
potential users that the bridge is not intended for nighttime use through the placement of
informational signage on either end of the bridge deck.
· As the Maroon Creek Pedestrian Bridge will be a part of the City of Aspen Trails system, dogs
will be required to be leashed when using the bridge and when accessing public txails from the
bridge.
By signing this letter below, the parties do hereby agree to abide by the conditions of this Letter of
Understanding. Neither the City, the Association nor the Company are waiving their rights regarding the
language and limitations of all previous agreements by signing this Letter of Understanding. Nothing contained
herein shall expand upon the permitted uses of the Tiehack Parking lots as described within the attached public
access easement
FOR THE CITY OF ASPEN:
Responsible party for the City:
Name
Title
130 S. Galena Street
Aspen, CO 81611
(970) 920-5120)
FOR THE MAROON CREEK CLUB MASTERS ASSOCIATION:
Responsible Party for the Maroon Creek Club Masters Association:
Name
Title
c/o Maroon Creek Club
10 Club Circle
Aspen, CO 81611
(970) 920-1533
EXHIBIT "E"
Landscape Plan for License Area
The City shall completely revegetate and reclaim all areas disturbed or impacted within the Construction
Area and the Staging Area (see Exhibit "A"). Revegetation of the site shall be accomplished by reseeding
with a native grass mix comparable to those described within the Recommended Plant List below. In
addition, any portion of the Construction Area or Staging Area that is in need of reclamation at~er the
bridge is constructed will be revegetated with native brush species comparable to those described within the
Recommended Plant List. Placement of the shrub species will be determined in the field and based upon
the densities of existing shrubs surrounding the Construction and Staging areas. Preparatory to planting
and seeding, the Construction area will be regraded and shaped to the existing grades and topography
present prior to construction activities. This work shall be accomplished so that it blends into the existing
topography, concealing the temporary road cuts placed to gain access to the spread footings and abutments
of the bridge. At least four (4) inches of native topsoil shall be placed and tilled to the desired line and
grade. The top four (4) inches of soil shall be free of rocks and other foreign matter before reseeding
begins.
The City shall employ hydraulic or hand broadcast seeding of the topsoil. All seed shall be furnished in bags or
other containers clearly labeled to show the name and address of the supplier, the seed name, the lot number,
net weight, origin, the percent weed content, the guaranteed pementage of purity and germination, and the
pounds of pure live seed of each seed species in the container. All brands furnished shall be free from such
noxious weeds as Russian or Canadian Thistle, European Bindweed, Johnson Grass and Leafy Spurge.
Seed types and amount of pure live seed required per acre shall be in conformance with the surrounding native
grasses and be determined by the applicant. If desired, the Licensor may review the proposed seed mix for its
compatibility with the surrounding vegetation and approve it before use. The applicant shall also be
responsible for assuring the Licensor that the areas to be revegetated will grow and take root to the soils in the
disturbed areas. This will include any watering or fertilizing needed to insure or otherwise promote this growth.
To guarantee the revegetation, the City will provide a bond to the Licensor. The bond will be equal to the costs
of revegetation, and will be released to the City when it is determined by the Licensor that the revegetation of
the disturbed areas has been successfully completed. Payment and Performance Bond for an amount set by the
Licensor shall be provided and secured unto the Licensor, and, if the work is not completed as specified, any
security shall be in default and the Licensor shall recover on the security, provided notice of non-compliance is
given in writing to the City by the Licensor~ The surety executing any bond shall continue to be firmly bound
under a continuing obligation for the payment of all necessmy costs and expenses that may be incurred or
expended by the Licensor in causing any unsatisfactory work to be corrected or any unfinished work to be
completed. Securities other than a bond, such as cash payment or letter of credit, shall be approved by the
Licensor prior to permit issuance.
If within a one-year period from the revegetation effort a successful stand of native shrubs and grasses has not
been accomplished, the Licensor may, at its discretion, retain any and all of the assurance monies necessary in
order to attempt revegetation of the grounds. A successful stand of native grasses is defined as being at a 75%
germination rate and/or having a vegetation cover equal to or greater than the surrounding vegetation cover.
The success of the revegetafion efforts will be measured at the end of the summer growing season by the
Licensor who will approve or reject it between that time and the end of the one-year assurance period.
Recommended Plant List
Trees:
Scmb Oak
Western Juniper
Shrubs:
Amelanchier alnifolia- Serviceberry
Artemesia frigida- Fringed Sage
Artemesia ~identate "Vaseyana' - Mountain Sage
Cercocarpus mountanus - Mountain Mahogany
Purshia tridentata- Antelope bitterbrush
Seeding:
Native Seed Mix
Pure Live Seed
Common Name Scientific Name LBS/Acre
Western Wheatgmss Agropyron 10
Mountain Brome Bromus marginatus 6
Slender Wheatgrass Agropyron tmchycaulum 6
Thickspike Wheatgrass Agropyron dasystachum 6
Indian Ricegrass Oryzopsis hymenoides 4
Blue Flax Linum lewisii .5
Rocky Mt. Penstemon Penstemon strictus 1
Total pounds live seed per acre (broadcast) 33.5
EXHIBIT "E"
Landscape Plan for License Area
The City shall completely revegetate and reclaim all areas disturbed or impacted within the Construction
Ama and the Staging Area (see Exhibit "A"). Revegetation of the site shall be accomplished by reseeding
with a native grass mix comparable to those described within the Recommended Plant List below. In
addition, any portion of the Construction Area or Staging Area that is in need of reclamation after the
bridge is constructed will be revegetated with native brush species comparable to those described within the
Recommended Plant List. Placement of the shrub species will be determined in the field and based upon
the densities of existing shrubs surrounding the Construction and Staging areas. Preparatory to planting
and seeding, the Construction area will be regraded and shaped to the existing grades and topography
present prior to construction activities. This work shall be accomplished so that it blends into the existing
topography, concealing the temporary road cuts placed to gain access to the spread footings and abutments
of the bridge. At least four (4) inches of native topsoil shall be placed and tilled to the desired line and
grade. The top four (4) inches of soil shall be free of rocks and other foreign matter before reseeding
begins.
The City shall employ hydraulic or hand broadcast seeding of the topsoil. All seed shall be furnished in bags or
other containers clearly labeled to show the name and address of the supplier, the seed name, the lot number,
net weight, origin, the percent weed content, the guaranteed percentage of purity and germingtion, and the
pounds of pure live seed of eech seed species in the container. All brands furnished shall be free from such
noxious weeds as Russian or Canadian Thistle, European Bindweed, Johnson Gross and Leafy Spurge.
Seed types and amount of pure live seed required per acre shall be in conformance with the surrounding native
grasses and be determined by the applicant. If desired, the Licensor may review the proposed seed mix for its
compatibility with the surrounding vegetation and approve it before use. The applicant shall also be
responsible for assuring the Licensor that the areas to be revegetated will grow and take motto the soils in the
disturbed areas. This will include any watering or fertilizing needed to insure or otherwise promote this growth.
To guarantee the revegetation, the City will provide a bond to the Licensor. The bond will be equal to the costs
of revegetatinn, and will be released to the City when it is determined by the Licensor that the revegetation of
the disturbed areas has been successfully completed. Payment and Performance Bond for an amount set by the
Licensor shall be provided and secured unto the Licensor, and, if the work is not completed as specified, any
security shall be in default and the Licensor shall recover on the security, provided notice of non-compliance is
given in writing to the City by the Licensor. The surety executing any bond shall continue to be firmly bound
under a continuing obligation for the payment of all necessmy costs and expenses that may be incurred or
expended by the Licensor in causing any unsatisfactory work to be corrected or any unfinished work to be
completed. Securities other than a bond, such as cash payment or letter of credit, shall be approved by the
Licensor prior to permit issuance.
If within a one-year period from the revegetation effort a successful stand of native shrubs and grasses has not
been accomplished, the Licensor may, at its discretion, retain any and all of the assurance monies necessary in
order to attempt revegetation of the grounds. A successful stand of native grasses is defined as being at a 75%
germination rate and/or having a vegetation cover equal to or greater than the surrounding vegetation cover.
The success of the revegetation efforts will be measured at the end of the summer growing season by the
Licensor who will approve or reject it between that time and the end of the one-year assurance period.
Recommended Plant List
Trees:
Scrub Oak
Western Juniper
Shrubs:
Amelanchier alnifolia - Serviceberry
Artemesia frigida - Fringed Sage
Artemesia tridentate "Vaseyana" - Mounta'm Sage
Cercocarpus mountanus - Mounta'm Mahogany
Purshia tridentata- Antelope bitterbmsh
Seeding:
Native Seed Mix
Pure Live Seed
Common Name Scientific Name LBS/Acre
Western Wheatgrass Agropyrun 10
Mountain Brome Bromus marginatus 6
Slender Wheatgrass Agropyron trachycau~um 6
Thickspike Wheatgrass Agropyron dasystachum 6
Indian Ricegrass Oryzopsis hymenoides 4
Blue Flax Linum lewisii .5
Rocky Mt. Penstemon Penstemon strictus 1
Total pounds live seed per acre (broadcast) 33.5
CONSTRUCTION LICENSE
IN CONSIDERATION of the sum of Ten DolIars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Maroon Creek Club Master Association,
(hereinafter "Licensor"), does hereby grant to the City Of Aspan, Colorado (hereinafter "Licensee") a
Construction License to use certain portions of its land lying within Section 11, Township 10 South, Range
85 West of the 6th Principal Meridian, Pitkin County, Colorado, as more specifically shown on the attached
Exhibit "A" (hereinafter the "property"), under the following conditions:
1. PLrRPOSE OF LICENSE~ The Construction License will pemtit the Licensee to utilize the
property described in Exhibit "A" for access to, staging and construction of what is known as the
Maroon Creek Pedestrian Bridge project, for which an easement has been recorded in Book 33,
Page 4 of the Pitkin County Clerk and Recorder's Office as a part of the plat for the Maroon Creek
Club development. The structure to be placed is a fourteen (14) foot wide, arch-deck pedestrian
bridge constructed as shown on Exhibit "B". No structures other than those hereinabove provided
and utility extensions, including a water line extension and conduit for future
communication/electrical lines that are attached to the pedestrian bridge, shall be erected,
constructed or placed upon said property by the Licensee without prior written consent of the
Licensor.
2. WORK SCHEDULE. Attached as Exhibit "C" is a conslruction schedule showing the various
stages of bridge construction and the anticipated construction traffic generated by each stage.
Licensee agrees that no work will be done to erect the bridge on the Tiehack side of Maroun Creek
between June 15, 2002 and September 3, 2002. The Licensee and its contractor may apply for
exceptions to this prohibition that will be considered and approved by the Licensor on a case-by-
case basis. Licensee agrees to comply with road weight restrictions imposed on Tiehack Road
from April 15th to June 15t~. During this period, the Licensee agrees to a maximum load of Forty
Thousand (40,000) pounds on a tandem dump truck or the equivalent on any other vehicle type of
Thirteen Thousand Five Hundred (13,500) pounds per axle~ Compliance with the weight
restrictions may include limiting loads and increasing trips. Work to erect the bridge includes
construction access, staging and erection of the bridge as defined in Exhibit "A". The Licensor
agrees to release the Licensee from the requirement &the Subdivision Improvements Agreement
to have the bridge completed within eighteen (18) months of initial construction (April 17, 2003).
Work shall not be conducted before 7:00 am or after 7:00 pm and shall not occur on Saturdays and
Sundays unless as provided under this agreement.
3. ROAD USE FEE. Licensee shall be responsible for, and at its expense provide prior to initiation
of bridge construction from the property, a mutually determined road impact fee of Nine-
Thousand Dollars ($9000.00). The Licensee shall comply with all 0fthe terms and conditions set
forth in the letter dated May 10, 2002 from Newland Project Resources, Inc. to Scott Irwin ~vhich
is attached hereto. Licensee shall furthermore install, at its expense, any more permanent traffic
control measures at the golf cart crossing referred to in that letter that are approved by Licensor
after the analysis of any other permanent control devices is completed by the Licensee. This
obligation shall specifically survive the termination of this license. Licensee further agrees to
limit the number of heavy duty track lrips on Tiehack Road to an average of three (3) roundtrips
per day until June 15, 2002. Licensee further agrees to provide an appropriate level of traffic
control on Tieback Road during the delivery of the steel frame for the bridge (after September 3rd).
The traffic control plan shall include flagman at intersections during these delivery events and
sufficient notice of construction activities that may impact road use. Flagman will also be utilized
at other times as requested by the Licensor. The payment of the road impact feeds does not relieve
the Licensee from liability for any repairs necessitated in whole or in part by the improper use of
Tiehack Road.
4. STAGING AREA. Licensee shall have the ability to use the Tiehack parking areas (Lots 14 and
15) for construction staging. Lot 14, located south and west of the Construction Area, shall be
used for staging from the initiation of the project until June 15,2002. Lot 15, located north and
west of the Construction Area, will be used for construction staging and steel delivery after
September 3, 2002. Licensee agrees to use reasonable efforts to stay away from the easterly edge
of the parking area in Lot I5. Access to mail delivery boxes on the north end of the Lot 15
parking lot shall be maintained at all times. Licensee shall flag and fence as necessary all
construction and staging areas dining the course of the work. A fencing plan will be presented to
the Licensor for.approval prior to impIementation. In return for using the parking lots, Licensee
agrees to share equally in the costs of repairing any cracks and_sealing the asphaR surface of the
parking lot in Lot 15 after the project is completed. This agreement to mutually repair cracks and
seal the parking area does not relieve the Licensee from liability for any repairs necessitated in
whole or in part by the use of the parking lots. In an effort to avoid homeowner concerns,
Licensee shall not at any time park or idle vehicles, or store materials on any of Licensor's roads,
driveways or properties other than those specifically defined herein. The parking lots shall be
vacated and cleared by November 27, 2002.
5. TERMINATION. With the exception of Exhibit "D', the Letter of Understanding between the
Licensee and the Licensor, this Construction License she11 automatically terminate and be of no
force or effect upon the completion of construction of the Maroon Creek Pedestrian Bridge and
satisfactory compIetion of the Landscape Plan for the property. Licensor and Licensee shall make
a mutual assessment of the License Area both prior to initiation of the project and after completion
of the project. It is acknowledged that the final assessment may not occur until July of 2003 to
verify road/parking lot damage and the success of the revegetation plan.
6. LANDSCAPE PLAN. A landscape plan for the License area is attached as Exhibit "E".
Licensee shall be responsible for implementing the plan. If any buildings, structures, landscaping,
fences, ditches, or other improvements on the property are damaged or destroyed by the
construction activities of the Licensee; Licensee shall promptly replace, repair and otherwise
restore these improvements to the previous condition.
7. VIOLATIONS OF LICENSE. The Licensee agrees that its contractor shall post a consh'uction
performance bond for an amount of One Hundred Thousand Dollars ($100,000.00) that
incorporates a daily penalty of One Thousand One Hundred Fifty Dollars(S1,150.00) for the first
day's violation of the License. Any violations of this License Agreement which continue
uncured for a period of time of greater than one (1) day, or which reoccur after an initial violation
shall have a daily penalty of Two Thousand Three Hundred Dollars ($2300.00). Any violation of
any duration shall be immediate grounds for injunctive relief and forfeiture of the performance
bond. Licensor or any beneficiary of the agreement retains the fight to collect reasonable
attorneys' fees and costs in the event of enforcement action and also retains the right to injunctive
relief and forfeiture of the performance bond.
8. PUBLIC USE AND MAINTENANCE OF BRIDGE. Upon its completions Licensee shall be
responsible for maintaining, repairing and otherwise operating the Maroon Creek Pedestrian
Bridge. Licensee and Licensor agree to abide by the terms and conditions of the Letter of
Understanding regarding public Use of the Tieback Parking Lots (Lots 14 and I5 of the Maroon
Creek Club Subdivision) that is attached as Exhibit "D".
9. ADDED SIGNATORY. The Maroon Creek Limited Liability Company is hereby named a
signatory to this License and is deemed a beneficiary of this agreement with complete rights of
enforcement.
THIS AGREEMENT shall be binding upon and inure to the benefit of the parties and their successors and
assigns. Nothing herein contained shall be deemed to restrict Licensor in the use and ownership of the
property burdened by the Construction License herein granted, except as any use may be inconsistent with
the rights granted hereunder. This license may be amended or modified only by a writing executed by the
parties hereto, their successors or assigns:
EXECUTED this ~'~ day Of ~/~ ,2002.
Gap/Al~e2,~'~e siden~'''~ v
STATE OF COLORADO
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this I k( day of ~-[~ ,2002,
by Gary Albert as President,of~ ~_aroou Creek Club Master Associatiou.
My co~ ex~.
~' . ,,'a~ Public
SIGNATORY: ~-'f~'
MAROON CREEK LIMITED LIABILITY COMPANY
Andrew Hecht, Member-Manager
STATE OF CO I.O~'L~ -[22) )
COUNTY OF ~'~ [T'b~ ~ )
)
~e forego~g ~s~ant was ac~owledged before me ~is { ~ day of ~ ,2002,
M?b ofM oan
Club L~ted Liabiliw Comply.
~ co~ssion/xpkes/ &/~
Wimess my ~d~~
LICENSEE:
CITY OF ASPEN
STATE OF ~~ -
The fpregoing insmtmen~ was ~tcknowledged befo~~ay of
by ~4~J~_,jq ~,!][t'l yJ_,qt~_.p['tl_t~. ~.~,?..Y...~.~ ~°~t ,2002,
My comm/~sion expires ~/~, ,~_~.~r~_~, ?? '"~, ~
Wi~m~kend and~ial ~21. ' "~ ~ CHERYL [ ~
EXHIBIT "A"
DESCRIPTION OF CONSTRUCTION LICENSE AREA
That portion of Parcel Q (Common Area) and Lot 15 (parking lot), Maroon Creek Club as shown on the
attached map; Lot 15, Maroon Creek Club for construction staging only; Tiehack Road from Lot 15 to
State Highway 82 for construction access only.
"Access Areas" on the mapping refers to the public section of Tieback Road from State Highway 82 to the
eastern Tiehack Parking Lot. This area will be for access only to the Staging Area and Construction Area.
"Staging Area" on the mapping refers to the public parking area on Lot t 5 of the Maroon Creek Club PUD.
This area will be for construction-related parking, construction staging and temporary storage of
construction materials.
"Construction Area" on the mapping refers to that portion of Common Lot Q that is required to construct
and gain access to construction of the bridge from the Staging Area and the Access Area.
4 5
MC6
Pipe
Double
(Typ.)
C Arch
(Typ.)
TYPICAL SECTION
Computer File InformOtion Index of Revisions
CfeoliOn Dole: ]~JliOl$; ~
LosI ~dilicalion Dole: IOAPR 200~ IniliOlS: ~
EXHIBIT '~C;;
CONSTRUCTION SCHEDULE AND ANTICIPATED CONSTRUCTION TRAFFIC GENERATION
FOR THE MAROON CREEK BRIDGE
!
,!
EXHIBIT "E"
Landscape Plan for License Area
The City shall completely revegetate and reclaim all areas disturbed or impacted within the Construction
Area and the Staging Area (see Exhibit "A"). Revegetation of the site shall be accomplished by reseeding
with a native grass mix comparable to those described within the Recommended Plant List below. In
addition, any portion of the Constmetinn Area or Staging Area that is in need of reclamation after the
bridge is constructed will be revegetated with native brash species comparable to those described within the
Recommended Plant List. Placement of the shrub species will be determined in the field and based upon
the densities of existing shrubs surrounding the Construction and Staging areas. Preparatory to planting
and seeding, the Construction area will be regraded and shaped to the existing grades and topography
present prior to construction activities. This work shall be accomplished so that it blends into the existing
topography, concealing the temporary road cuts placed to gain access to the spread footings and abutments
of the bridge. At least four (4) inches of native topsoil shall be placed and tilled to the desired line and
grade. The top four (4) inches of soll shall be free of rocks and other foreign matter before reseeding
begins.
The City shall employ hydraulic or hand broadcast seeding of the topsoil. All seed shall be fin'tfished in bags or
other centeiners clearly labeled to show the name and address of the supplier, the seed name, the lot number,
net weight, origin, the percent weed content, the guaranteed percentage of purity and germination, and the
pounds of pure live seed of each seed species in the container. All brands fianished sha!l be free from such
noxious weeds as Russian or Canadian Thistle, European Bindweed, Johnson Grass and Leafy Spurge.
Seed types and amount of pure live seed reqtth~ par acre shall be in conformance with the smrounding native
grasses and be determined by the applicant. If desired, the Licensor may review the proposed seed mix for its
compatibility with the surrounding vegetation and approve it before use. The applicant shall also be
responsible for assuring the Licensor that the areas to be revegetated will grow and take root to the soils in the
disturbed areas. This will include any watering or fertilizing needed to insure or otherwise promote this growth2
To guarantee the revegetafio~, the City will provide a bond to the Licensor. The bond will be equal to the costs
of revegetation, and will be released to the City when it is deten'ained by the Licensor that the revegetation of
the disturbed areas has been successfully completed. Payment and Performance Bond for an amount set by the
Licensor shall be provided and secured unto the Licensor, and, if the work is not completed as specified, any
security shall be in default and the Licensor shall recover on the security, provided notice of non-compliance is
given in writing to the City by the Licensor. The surety executing uny bund shall continue to be firmly bound
under a continuing obligation for the payment of all necessary costs and expenses that may be incurred or
expended by the Licensor in causing any unsatisfactory work to be corrected or any unfinished work to be
completed. Securities other than a bond, such as cash payment or letter of credit, shall be approved by the
Licensor prior to permit issuance.
If within a one-year period from the revegetation effort a successful stand of native shrubs and grasses has not
been accomplished, the L/censor may, at its discretion, retain any and all of the assurance monies necessary in
order to attempt revegetation of the grounds. A successful stand of native grasses is defined as being at a 75%
germinarion rate and/or having a vegetation cover equal to or greater than the surrounding vegetation cover.
The success of the revegetatiun efforts will be measured at the end of the summer growing season by the
Licensor who will approve or reject it between that time and the and of the one-year assurance period.
Recommended Plant List
Trees:
Scrub Oak
Western Juniper
Shrubs:
Amelanchier alnifolia- Serviceberry
A~emesia frigida- Fringed Sage
Anemesia lrldentate "Vaseyana" - Mountain Sage
Cercocarpus mountanus - Mountain Mahogany
Purshia tridentata - Antelope bitterbmsh
Seeding:
Native Seed Mix
Pure Live Seed
Common Name Scientific Name LBS/Acre
Western Wheatgrass Agropyron 10
Mountain Brome Bromus marginatus 6
Slender Wheatgrass Agropyron trachycaulum 6
Thickspike Wheatgrass Agropy~on dasystachum 6
Indian Ricegxass Oryzopsis hymenoides 4
Blue Flax Linm lewisii .5
Rocky Mt. Panstemon Penstemon strictus 1
Total pounds live seed per acre (broadcast) 33.5
May 10, 2002
Ma~'oon Creek Club
tO Club Circle
Aspen, CO
Dear Scott;
Thank you for meeUng with
Road that may result from the CIW of Aspen's pending construction of the Maroon.
Creek Pedestrian 8ridge:
I have discussed this issue with ]eff. Wceds, Hanager of Parks & P, ecreatien at the
City, AS
olace slgnage and stripping warning north-bound tramc el' the goff cart crossing
located ap0roximately 0.5 miles from Highway 82. The City is al~o wll!ing t~ provide
an assessment that analyzes the placement of more permanent.traffic-calming
itl1 provements to assur~ safeb/at this vulnerable cart path crossing.
The warning a;gnage and stripping will be. placed pdor.~ June i,-2002. With the
placement of this
Mareon Creek Pedestrian proJe~ until ]une ~5, 2.002.
Thank you. again for you~ a~cention to ~hls issue, ~f you have any c~uesUon~, please
contact me.
Since~/