HomeMy WebLinkAboutresolution.council.004-24RESOLUTION #004
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND NICX CONSTRUCTION AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO0
WHEREAS, there has been submitted to the City Council a contract, for
Construction Services for the Herron Park Bathroom Installation and Site Work,
between the City of Aspen and NICX Construction, a true and accurate copy of
which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract for
Construction Services for the Herron Park Bathroom Installation and Site Work,
between the City of Aspen and NICX Construction, a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager to
execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 9" day of January 2024.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held, January 9, 2024.
Nicole
City Clerk
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IT'S k�JF Aa PEF1J
CONTRACT FOR CONSTRUCTION
(Short Form) 2023-345
PROJECT HERRON PARK BATHROOM SITE WORK
#100, 572.81200.52199, 51446
THIS CONTRACT, made and entered into on January 9, 2024, by and between the CITY
OF ASPEN, Colorado, hereinafter called the "City", and NETWORK INFRASTRUCTURE
CONSTRUCTION COMPANY (NICX CO.), hereinafter called the "Contractor".
THEREFORE, in consideration of the mutual covenants and Contracts herein contained,
and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Construction of Project. Contractor agrees to furnish all labor, materials,
tools, machinery, equipment, temporary utilities, transportation and any other facilities
needed therefor, and to complete in a good, workmanlike and substantial manner the
Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit
"A" which is incorporated herein as if fully set forth (the "Project").
2. Plans and Specifications; Compliance with Laws. The Project is to be
constructed and completed in strict conformance with the Scope of Work and/or
Proposal appended hereto for the same approved in writing by the parties hereto. The
Project shall also be constructed and completed in strict compliance with all laws,
ordinances, rules, regulations of all applicable governmental authorities, and the City of
Aspen Procurement Code, Title 4 of the Municipal Code, including the approval
requirements of Section 4-0&040. Contractor shall apply for and obtain all required
permits and licenses and shall pay all fees therefor and all other fees required by such
governmental authorities.
3. Payments to Contractor. In consideration of the covenants and Contracts
herein contained being performed and kept by Contractor, including the supplying of all
labor, materials and services required by this Contract, and the construction and
completion of the Project, City agrees to pay Contractor a sum not to exceed Two
Hundred Eighty Thousand ($280,000.00) DOLLARS or as shown on Exhibit "A".
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4. Commencement and Completion. Contractor agrees to commence work per
the schedule in Exhibit 'A', to prosecute said work thereafter diligently and continuously
to completion, and in any and all events to substantially complete the same not later
than October 30, 2024, subject to such delays as are permissible under the "Extension
of Time for Completion" section of this Contract.
5. Payment of Bills and Charges. Contractor shall pay promptly all valid bills
and charges for material, labor, machinery, equipment or any other service or facility
used in connection with or arising out of the Project, and shall obtain periodic releases
from all subcontractors and material suppliers supplying labor or materials to the
Project concurrently with Contractor's delivering any payment to such subcontractors
and material suppliers. Contractor shall indemnify and hold City and City's officers,
employees, agents, successors and assigns free and harmless against all expenses and
liability suffered or incurred in connection with the claims of any such subcontractors or
material suppliers, including but not limited to court costs and attorney's fees resulting
or arising therefrom; provided that Contractor shall be excused from this obligation to
the extent that City is in arrears in making the payments to Contractor. Should any liens
or claims of lien be filed of record against the Property, or should Contractor receive
notice of any unpaid bill or charge in connection with construction of the Project,
Contractor shall immediately either pay and discharge the same and cause the same to
be released of record, or shall furnish City with the proper indemnity either by title
policy or by corporate surety bond in the amount of 150% of the amount claimed
pursuant to such lien.
6. Releases. Contractor shall, if requested by City, before being entitled to
receive any payment due, furnish to City all releases obtained from subcontractors and
material suppliers and copies of all bills paid to such date, properly receipted and
identified, covering work done and the materials furnished to the Project and showing
an expenditure of an amount not less than the total of all previous payments made
hereunder by City to Contractor.
7. Hierarchy of Project Documents. This Contract and the Proposal or Scope of
Work appended hereto as Exhibit "A" are intended to supplement one another. In case
of conflict, however, this Contract shall control both.
8. Changes in the Work. Should the City at any time during the progress of the
work request any modifications, alterations or deviations in, additions to, or omissions
from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the
same shall in no way affect or make void this Contracts but the amount thereof shall be
amortized over the remaining term of this Contract and added to or deducted, as the
case may be, from the payments set forth in Paragraph 3 above by a fair and reasonable
valuation, based upon the actual cost of labor and materials. This Contract shall be
deemed to be completed when the work is finished in accordance with the original
Proposal or Scope of Work as amended or modified by such changes, whatever may be
the nature or the extent thereof. The rule of practice to be observed in fulfillment of
this paragraph shall be that, upon the demand of either City or Contractor, the
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character and valuation of any or all changes, omissions or extra work shall be agreed
upon and fixed in writing, signed by City and Contractor, prior to performance.
9. Contractor's Failure to Perform. Should Contractor, at any time during the
progress of the work, refuse or fail to supply sufficient material or workmen for the
expeditious progress of said work or fail to perform any other provisions of this
Contract, City may, upon giving notice in writing to Contractor as provided herein and
upon Contractor's failure to remedy any such failure within 3 days from receipt of such
notice, terminate this Contract and provide the necessary material and workmen to
finish the work and may enter upon the Property for such purpose and complete said
work. The expense thereof shall be deducted from the payments remaining under
Paragraph 3 above, or if the total cost of the work to City exceeds the amount of such
remaining payments, Contractor shall pay to City upon demand the amount of such
excess in addition to any and all other damages to which City may be entitled. In the
event of such termination, City may take possession of all materials, equipment and
appliances belonging to Contractor upon or adjacent to the Property upon which said
work is being performed and may use the same in the completion of said work. Such
termination shall not prejudice or be exclusive of any other legal rights which City may
have against Contractor.
10. Extension of Time for Completion. Time is of the essence of this Contract
and Contractor shall substantially complete the work during the time provided for
herein. However, the time during which Contractor is delayed in said work by (a) the
acts of City or its agents or employees or those claiming under Contract with or
permission from City, or (b) the acts of God which Contractor could not have reasonably
foreseen and provided against, or (c) unanticipated stormy or inclement weather which
necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by
employees or labor organizations and which are beyond the control of Contractor and
which it cannot reasonably overcome, or (e) the failure of City to make progress
payments promptly, shall be added to the time for completion of the work by a fair and
reasonable allowance. Contractor recognizes, however, that the site of the work is in
the Rocky Mountains at a high elevation where inclement whether conditions are
common. This fact has been considered by Contractor in preparing its Proposal and or
agreeing to the Scope of Work. Furthermore, Contractor shall have the right to stop
work if any payment, including payment for extra work, is not made to Contractor as
provided in this Contract. In the event of such nonpayment, Contractor may keep the
job idle until all payments then due are received.
11. Unforeseen Conditions. It is understood and agreed that Contractor,
before incurring any other expenses or purchasing any other materials for the Project,
shall proceed to inspect the work site and all visible conditions and that if, at the time
of inspection therefor, the Contractor finds that the proposed work is at variance with
the conditions indicated by the Proposal, Scope of Work, or information supplied by
City, or should Contractor encounter physical conditions below the surface of the
ground of an unusual nature, differing materially from those ordinarily encountered
and generally recognized as inherent in work of the character provided for in this
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Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so
notify City, and City shall at that time have the right and option to immediately cancel
and terminate this Contract or to instruct Contractor to continue the work and add the
additional amount attributable to such unforeseen conditions to the payments due
Contractor as set forth above.
It is agreed that in the event of any cancellation by City in accordance with this section,
Contractor shall be paid the actual costs .of the work done prior to the time of
cancellation. In computing such costs, building permit fees, insurance and such
financing and title charges as are not refundable shall be included; provided that
supervision time, office overhead and profit shall not be included in such costs to be
refunded to Contractor by reason of such cancellation.
12. Acceptance by City. No payment hereunder nor occupancy of said
improvements or any part thereof shall be construed as an acceptance of any work
done up to the time of such payment or occupancy, but the entire work is to be subject
to the inspection and approval of City at the time when Contractor notifies City that the
Project has been completed.
13. Notice of Completion; Contractor's Release. City agrees to sign and file of
record within five (5) days after the substantial completion and acceptance of the
Project a Notice of Completion. If City fails to so record the Notice of Completion within
said five (5) day period, City hereby appoints Contractor as City's agent to sign and
record such Notice of Completion on City's behalf. This agency is irrevocable and is an
agency coupled with an interest. Contractor agrees upon receipt of final payment to
release the Project and property from any and all claims that may have accrued against
the same by reason of said construction. If Contractor faithfully performs the
obligations of this Contract on its part to be performed, it shall have the right to refuse
to permit occupancy of any structures by City or City's assignees or agents until the
Notice of Completion has been recorded and Contractor has received the payment, if
any, due hereunder at completion of construction, less such amounts as may be
retained pursuant to mutual Contract of City and Contractor under the provisions of
Paragraph 3 above.
14. Indemnification. Contractor agrees to indemnify and hold harmless the City,
its officers, employees, insurers, and self-insurance pool, from and against all liability,
claims, and demands, on account of injury, loss, or damage, 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 and for an amount represented by the degree
or percentage 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 wrongful act, omission, error, contractor 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 subcontrac-
tor 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.
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The Contractor agrees to investigate, handle, respond to, and to 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. If it is determined by the final judgment of a court of competent jurisdiction
that such injury, loss, or damage was caused in whole or in part by the act, omission, or
other fault of the City, its officers, or its employees, the City shall reimburse the
Contractor for the portion of the judgment attributable to such act, omission, or other
fault of the City, its officers, or employees.
15. Insurance.
a. 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 the terms of this Contract. 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 the terms of this Contract by reason of its failure to procure or
maintain insurance, or by reason of its failure to procure or maintain insurance in
sufficient amounts, duration, or types.
b. 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 the terms of this Contract. In the
case of any claims -made policy, the necessary retroactive dates and extended reporting
periods shall be procured to maintain such continuous coverage.
1. Worker'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 ONE
MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION DOLLARS
($1,000,000.00) disease -policy limit, and ONE MILLION DOLLARS
($1,000,000.00) disease -each employee. Evidence of qualified self -insured
status may be substituted for the Worker's Compensation requirements of
this paragraph.
2. Commercial General Liability insurance with minimum combined single limits
of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE
MILLION DOLLARS ($3,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily
injury, broad form property damage (including completed operations),
personal injury (including coverage for contractual and employee acts),
blanket contractual, independent contractors, products, and completed
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operations. The policy shall include coverage for explosion, collapse, and
underground hazards. The policy shall contain a severability of interests
provision.
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 shall be met by
each employee of the Contractor providing services to the City under this
contract.
c. Except for any Contractor Liability insurance that may be required, the policy or policies
required above shall be endorsed to include the City of Aspen and the City of Aspen's
officers and employees as additional insureds. Every policy required above shall be
primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen,
shall be excess and not contributory insurance to that provided by Contractor. No
additional insured endorsement to the policy required above shall contain any exclusion
for bodily injury or property damage arising from completed operations. The Contractor
shall be solely responsible for any deductible losses under any policy required above.
d. The certificate of insurance provided to 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 under the policies shall not be canceled, terminated or materially
changed until at least thirty (30) days prior written notice has been given to the City of
Aspen.
e. In addition, these Certificates of Insurance shall contain the following clauses:
Underwriters and issuers shall have no right of recovery or subrogation against the City of
Aspen, it being the intention of the parties that the insurance policies so effected shall
protect all parties and be primary coverage for any and all losses covered by the above -
described insurance. To the extent that the City's insurer(s) may become liable for
secondary or excess coverage, the City's underwriters and insurers shall have no right of
recovery or subrogation against the 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.
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.
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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
fifteen (15) days prior to a policy's expiration date except for any policy expiring on the
expiration date of this Contract or thereafter.
f. 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 from City.
g. City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
16. Damage or Destruction. If the Project is destroyed or damaged by any
accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft
or vandalism, any work done by Contractor in rebuilding or restoring the work shall be
paid for by City as extra work under Paragraph 8 above. If, however, the estimated cost
of replacement of the work already completed by Contractor exceeds twenty (20%)
percent of the insured sum set forth in Paragraph 14 above, City shall have the option
to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost,
including net profit to Contractor in the amount of ten (10ro) percent, of all work
performed by Contractor before such cancellation.
17. Notices. Any notice which any party is required or may desire to give to any
other party shall be in writing and may be personally delivered or given or made by
United States mail addressed as follows:
To City:
To Contractor:
City of Aspen
Michael Tunte
427 Rio Grande Place
Aspen, Colorado 81611
NICX Co.
Scott Wendland
11460 W 44th Ave.
Wheatridge, CO 80033
subject to the right of either party to designate a different address for itself by notice
similarly given. Any notice so given, delivered or made by United States mail, shall be
deemed to have been given the same day as transmitted by telecopier or delivered
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personally, one day after consignment to overnight courier service such as Federal
Express, or two days after the deposit in the United States mail as registered or certified
matter, addressed as above provided, with postage thereon fully prepaid.
18. Inspections; Warranties.
(a) Contractor shall conduct an inspection of the Project prior to final acceptance of the
work with City.
(b) Contractor shall schedule and cause to be performed all corrective activities
necessitated as a result of any deficiencies noted on the final inspection prior to
acceptance. The costs of material and/or labor incurred in connection with such
corrective activities shall not be reimbursed or otherwise paid to Contractor.
(c) Contractor shall obtain, at City's expense, third party warranty contracts (to be
entered into by City).
19. Licensure of Contractor. Contractor hereby represents and warrants to City
that Contractor is duly licensed as a general contractor in the State of Colorado, and if
applicable, in the County of Pitkin.
20. Independent Contractor. It is expressly acknowledged and understood by the
parties that nothing in this Contract 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.
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.
21. Assignment. This Contract is for the personal services of Contractor.
Contractor shall not transfer or assign this Contractor its rights and responsibilities
under this Contract nor subcontract to others its rights and responsibilities under this
Contract, and any attempt to do so shall be void and constitute a material breach of this
Contract.
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22. Successors and Assigns. Subject to paragraph 22, above, this Contract shall
be binding on, and shall inure to the benefit of, City and Contractor and their respective
successors and assigns.
23. Entire Contract. This Contract contains the entire Contract between City
and Contractor respecting the matters set forth herein and supersedes all prior
Contracts between City and Contractor respecting such matters.
24. Waivers. No waiver by City or Contractor of any default by the other or of
any event, circumstance or condition permitting either to terminate this Contract shall
constitute a waiver of any other default or other such event, circumstance or condition,
whether of the same or of any other nature or type and whether preceding, concurrent
or succeeding, and no failure or delay by either City or Contractor to exercise any right
arising by reason of any default by the other shall prevent the exercise of such right
while the defaulting party continues in default, and no waiver of any default shall
operate as a waiver of any other default or as a modification of this Contract.
25. Remedies Rion -Exclusive. No remedy conferred on either party to this
Contract shall be exclusive of any other remedy herein or by law provided or permitted,
but each shall be cumulative and shall be in addition to every other remedy.
26. Governing Law. This Contract shall be governed by, and construed in
accordance with, the laws of the State of Colorado. Venue for any action at law or
equity shall be Pitkin County.
27. Attorneys' Fees. If either party to this Contract shall institute any action or
proceeding to enforce any right, remedy or provision contained in this Contract, the
prevailing party in such action shall be entitled to receive its attorneys' fees in
connection with such action from the non -prevailing party.
28. Severability. Any provision in this Contract which is held to be inoperative,
unenforceable or invalid shall be inoperative, unenforceable or invalid without affecting
the remaining provisions, and to this end the provisions of this Contract are declared to
be severable.
29. Nondiscrimination. During the performance of this Contract, the Contractor
agrees as follows: 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 Vietnam
era 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, handicapped, a
disadvantaged person, or a disabled or Vietnam 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
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agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided setting forth the provisions of this nondiscrimination
clause.
Any business that enters into a contract for goods or services with the City of Aspen or
any of its boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting
discrimination in hiring, discharging, promoting or demoting, matters of
compensation, or any other employment -related decision or benefit on
account of actual or perceived race, color, religion, national origin,
gender, physical or mental disability, age, military status, sexual
orientation, gender identity, gender expression, or marital or familial
status.
(b) Not discriminate in the performance of the contract on account of actual
or perceived race, color, religion, national origin, gender, physical or
mental disability, age, military status, sexual orientation, gender identity,
gender expression, or marital or familial status.
(c) Incorporate the foregoing provisions in all subcontracts hereunder.
30. Prohibited Interest. No member, officer, or employee of the City of Aspen,
Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect,
in this Contract or the proceeds thereof.
31. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of
Interest:
a. The Contractor warrants that no person or selling agency has been employed or
retained to solicit or secure this Contract upon a Contract or understanding for a
commission, percentage, brokerage, or contingency fee, excepting bona fide employees
or bona fide established commercial or selling agencies maintained by the Contractor for
the purpose of securing business.
b. 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.
c. 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
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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.
32. 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 amounts 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 appropriate.
33. Worker Without Authorization —CRS §8-17.5-101 & §24-76.5-101.
Purpose. During the 2021 Colorado legislative session, the legislature passed House Bill
21-1075 that amended current CRS §8-17.5402 (1), (2)(a), (2)(b) introductory portion,
and (2)(b)(III) as it relates to the employment of and contracting with a "worker without
authorization" which is defined as an individual who is unable to provide evidence that
the individual is authorized by the federal government to work in the United States. As
amended, the current law prohibits all state agencies and political subdivisions,
including the Owner, from knowingly hiring a worker without authorization to perform
work under a contract, or to knowingly contract with a Contractor who knowingly hires
with a worker without authorization to perform work under the contract. The law also
requires that all contracts for services include certain specific language as set forth in
the statutes. The following terms and conditions have been designed to comply with
the requirements of this new law.
Definitions. The following terms are defined by this reference are incorporated herein
and in any contract for services entered into with the Owner.
.1 "E-verify program" means the electronic employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public
Law 156, 108th Congress, as amended, that is jointly administered by the United
States Department of Homeland Security and the social security Administration,
or its successor program.
.2 "Department program" means the employment verification program
established pursuant to Section 8-17.5-102(5)(c).
.3 "Public Contract for Services" means this Agreement.
.4 "Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than
reports that are merely incidental to the required performance.
CCS-971.doc Page: 11 Updated: 6/5/2023
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
.5 "worker without authorization" means an individual who is unable to provide
evidence that the individual is authorized by the federal government to work in
the United States
By signing this document, Contractor certifies and represents that at this time:
1. Contractor shall confirm the employment eligibility of all employees who are
newly hired for employment to perform work under the public contract for
services; and
2. Contractor has participated or attempted to participate in either the e-verify
program or the department program in order to verify that new employees are
not workers without authorization.
Contractor hereby confirms that:
1. Contractor shall not knowingly employ or contract with a worker without
authorization to perform work under the Public Contract for Services.
2. Contractor shall not enter into a contract with a subcontractor that fails to
certify to the Contractor that the subcontractor shall not knowingly employ or
contract with a worker without authorization to perform work under the Public
Contract for Services.
3. Contractor has confirmed the employment eligibility of all employees who are
newly hired for employment to perform work under the public contract for
services through participation in either the e-verify program or the department
program.
4. Contractor shall not use the either the e-verify program or the department
program procedures to undertake pre -employment screening of job applicants
while the Public Contract for Services is being performed.
If Contractor obtains actual knowledge that a subcontractor performing work under the
Public Contract for Services knowingly employs or contracts with a worker without
authorization, Contractor shall.
1. Notify such subcontractor and the Owner within three days that Contractor
has actual knowledge that the subcontractor is employing or subcontracting
with a worker without authorization: and
2. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to this section the subcontractor does
not stop employing or contracting with the worker without authorization;
except that Contractor shall not terminate the Public Contract for Services with
the subcontractor if during such three days the subcontractor provides
CCS-971.doc Page: 12 Updated: 6/5/2023
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
information to establish that the subcontractor has not knowingly employed or
contracted with a worker without authorization.
Contractor shall comply with any reasonable request by the Colorado Department of
Labor and Employment made in the course of an investigation that the Colorado
Department of Labor and Employment undertakes or is undertaking pursuant to the
authority established in Subsection &17.5-102 (5), C.R.S.
If Contractor violates any provision of the Public Contract for Services pertaining to the
duties imposed by Subsection M7.5-102, C.R.S. the Owner may terminate this
Agreement. If this Agreement is so terminated, Contractor shall be liable for actual
damages to the Owner arising out of Contractor's violation of Subsection &17.5-102,
C.R.S.
It is agreed that neither this agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended,
waived, superseded or extended except by appropriate written instrument fully
executed by the parties.
If any of the provisions of this agreement shall be held invalid, illegal or unenforceable
it shall not affect or impair the validity, legality or enforceability of any other provision.
34. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be
deemed an original, and all of which together shall constitute one agreement binding
on the Parties, notwithstanding the possible event that all Parties may not have signed
the same counterpart. Furthermore, each Party consents to the use of electronic
signatures by either Party. The Scope of Work, and any other documents requiring a
signature hereunder, may be signed electronically in the manner agreed to by the
Parties. The Parties agree not to deny the legal effect or enforceability of the
Agreement solely because it is in electronic form or because an electronic record was
used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic
documents, or a paper copy of a document bearing an electronic signature, on the
ground that it is an electronic record or electronic signature or that it is not in its
original form or is not an original.
CCS-971.doc Page: 13 Updated: 6/5/2023
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
IN WITNESS WHEREOF, the parties agree hereto have executed this Contract for
Construction on the date first above written.
ATTESTED BY:
/--DocuSigned by:
APP
By:
mac, It,l�t,SbV�,
City Attorney
ATTESTED BY:
CITY
By:
E) LO RA D O
Title: city Manager
CONTRACTOR:
DocuSigned by:
Title: President
12/29/2023 14:33:05 PM MST
General Conditions for Construction Contracts and Special Conditions can be found on
City of Aspen Websitea
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.
CCS-971.doc Page: 14 Updated: 6/5/2023
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
CERTIFICATE OF INCORPORATION
(To be completed if Contractor is a Corporation)
STATE 0 F )
SS.
COUNTY OF )
On this
appeared
day of 20 ,before me
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:
CCS-971.doc Page: 15 Updated: 6/5/2023
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
Construction
co
mpany
LiTY OFASPEN
2023-345 Herron 'ark Site Work for
a Prefabricated Bathroom
For
1 � Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Construction
COMER LETTER
Parks and Open Space
585 Cemetery Lane
Aspen, CO 81611
(970)920-5059
www.cityofaspen.com
Aspen Parks and Open Space,
ompany
CITY OF ASPEN
ITB 2023-345
Network Infrastructure Construction Company
11460 W44th Ave
Wheat Ridge, CO 80433
December 26, 2023
Network Infrastructure Construction Company, DBA "NICX Construction" is pleased to provide a
response to your request for proposal for the ITB 2023-345 Project. We have reviewed the ITB
scope of work, and we are pleased to confirm that we are fully qualified to perform the
permitting, construction, and specialty services for this project.
NICX is an experienced Class B Commercial General Contractor specialized in Public Civil
infrastructure and telecommunications. NICX has extensive experience with public civil site work
projects for Colorado school districts, municipalities, and public utilities. We are confident that
we have the team and resources available to successfully execute the full scope of this project
in a timely fashion.
NICX Proposes the utilization of an experienced local Project team managed by the following
NICX leadership:
Project Director - Scott Wendland
Project Construction Manager and Civil Superintendent — Galen Phillips
Field Inspector, Quality and Safety Superintendent — Jason Gemmer
Project controller- Jessie Romanin
Project Accountant — Sarah Phillips
We look forward to the opportunity to work with the City of Aspen on this project and are
pleased to provide any additional documentation of expertise required for review.
Network Infrastructure Construction Company,
Scott Wendland, Director of Construction.
2 I Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
Construction
PROJECT NARRATIV[
HERRON PARK, 108 Neale Ave., Aspen CO 81611
The work to be performed under this project to generally consist of: Demolition and selective
salvage of existing structures and materials, clearing and grubbing, site preparation, trail usage
protection and installation of BMP's and sediment control systems. Work will also include
excavation, grading, installation of structures and foundations, utility connections, concrete and
asphalt and site restoration. All work to be completed per ITB scope of work as well as civil and
landscape plans.
PROJECT IMPLEMENTATION PLAN
NICX follows a simple project planning and preparation approach to lay the foundation
for project success.
Project initiation and planning:
upon contract award the program director will complete the project Initiation with
the following steps:
o Complete a full management team Kickoff meeting where scope, schedule and
team responsibilities will be clearly defined.
o Finalize design comments and clarifications.
o Identify project stakeholders.
o Review and approve the project execution schedule in conjunction with COA
parks team.
o Submit proposed products for final approval.
Project execution
Task 1) Pre- construction
The NICX project team will submit and apply for construction permitting, storm water and
dewatering permitting in February 2024. The Project manager will also coordinate individual
project location required "on -site" pre -construction walks and Survey/Layout staking. NICX will
also develop the traffic control MHT's for the pedestrian trails to remain open during
construction.
Any required materials will be ordered, and delivery scheduled for coincidence with scheduled
construction start in late March 2024.
Task 2) Construction
The Project manager will schedule installation crews to start the equipment and materials
mobilization to the project location.
Construction will be completed in the following order:
- Mobilization.
3 I Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Construction
MHT/TCP traffic control device placement.
company
Site Preparation erosion control device placement.
Selective demolition and salvage.
Clearing and Grubbing- Overburden export.
Excavation and Grading.
- Utility connections.
- Foundation installations.
- Bathroom and Feature installations and connections.
- Stone Veneer installation.
- Concrete and asphalt and paver flat work completion.
- Bathroom commissioning, inspections, and permit closures.
- Restoration, reclamation, and demobilization.
- Closeout package Creation and final project Reports.
The NICX team anticipates that the foundation and site prep work can be started by the end of
March 2024 and completed by mid -April if weather allows, installation of the bathroom, utility
connections, veneer work and complete final site work will be scheduled to correspond with the
delivery of the finished bathroom unit. Asphalt and paver installation will be completed after
temperatures are higher than 40 degrees overnight and frost is no longer a concern.
3) Project closeout
At the conclusion of the construction activities the project manager will complete the closeout
pI ocess that will include submittal of "as built" drawings, Cut Sheets, traffic control reports, JSA
report, Dailies, load tickets, Photos, inspections, redlined drawings, client acceptance and sign
A RFI LOG, and final invoice reconciliation and Project accounting true up.
Project Control and change management:
NICX will monitor and control the project in constant communication with COA Parks project
team as well as any sub -contracted special services.
o NICX will host project update meetings to monitor Safety, Production, Quality, and
schedule.
o Out of scope work will be identified and submitted to the COA Parks project manager in
writing for approval and clarification by NICX Construction team immediately when
encountered during construction.
o Change orders are to be approved in writing by the COA Parks assigned project
manager prior to NICX proceeding with any change order work.
o Change control log will be maintained and updated by the assigned NICX Project
Controller
4 � Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Construction Company
Sustainable Practices Note:
NICX is committed to sustainable waste management and environmental responsibility:
o Waste streams assessment is performed on each project.
o Optimal material sourcing and selection to reduce environmental impacts.
o Carbon emission reduction through local sourcing and vendor collaboration and regulation -
compliant, sustainable practices. Carbon emissions will be minimized by recommending
eco-friendly sourcing and measures such as carpooling.
Construction equipment is well -maintained and inspected for emissions compliance.
Success Through Systems:
NICX has established a platform of customized software tools and processes to manage large
scale projects with a small team of professionals.
�n nt� riAi
The NICX solution for managing employee reporting, scheduling, safety, training, project
resources and effective team communication.
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5 � Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Construction
Project Closeout and invoicing
ompany
The Project Accountant will invoice for all approved work completed per contract
specifications and proposed pricing schedule of values.
PROJECT TIMELINE
CRITICAL PATH MILESTONE PLANNING
29-Jan 18-Feb 9-Mar 29-Mar 18-Apr 8-May 28-May 17-Jun 7-Jul
MOBILIZATION AND TRAFFIC CONTROL SETUP
SITE PREP AND BMP'S
DEMOLITION AND SALVAGE
CLEARING AND GRUBBING
EXCAVATION AND GRADING
UTILITY CONNECTIONS
FOUNDATION INSTALLATIONS
BATHROOM INSTALLATION
STONE VENEER
CONCRETE, ASPHALT AND PAVERS
COMMISIONING AND INSPECTIONS
RESTORATION AND DEMOBILIZATION
PROJECT CLOSEOUT
Project proposed starts 3/25/2024.
Projected Substantial project completion 6/25/24*
*Dates subject to availability and shipping of bathroom.
27-Jul
6 � Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Herron Park Site Work Bid Tabs
Date:
Bidder.
Site construction fencing/tree protection
Metal mesh fence panels with screens, 6' ht.
120
If
$24.00
$21880900
Installation and maintenance of traffic control on Neale
Rio Grande Trail shall remain open through duration of
1
Is
$41700.00
$41700.00
Ave and Rio Grande Trail
the project, minimize impact to Neale Ave.
Asphalt saw cutting
Full depth
45
If
$34.00
$1J530.00
Asphalt removal
Remove and dispose
180
sf
$12.00
$21160.00
Asphalt milling
2" Depth
100
sf
$42.00
$4,200.00
Concrete saw cutting
Full depth
50
If
$34.00
$1,700.00
Concrete removal
Remove and dispose, walk, curbs, gutter and porta potty
300
sf
$12.00
$31600.00
base
Remove ADA Ramp
Remove and dispose
1
Is
$600.00
$600000
Salvage porta potty shelter
Remove, brace and provide to Parks Dept.
1
Is
$680.00
$680.00
Salvage signs
Remove and store on site for reinstallation. Remove and
2
ea
$175.00
$350.00
dispose of concrete footings.
Remove and salvage pavers
Remove, stack on pallets, wrap and deliver to Parks Dept.
600
sf
$8.75
$5,250000
Remove and grub vegetation
Around existing pavers
500
sf
$3.45
$1,725000
Remove existing tree
Sensation Maple, approximately 5" DBH, remove tree and
1
Is
$225.00
$225.00
root ball.
Any other demo and site preparation items not noted
Note items if applicable
1
Is
$11400.00
$11400.00
above
Demolition and Site Prep Total
$ 311000.00
Sanitary Sewer to building
4" PVC service. Includes connections, clean outs,
80
If
$ 96.00
$ 7,680.00
trenching, line installation, coordination, etc., for a
complete utility
Sanitary Sewer connections
Internal connections through the building footing vault to
1
Is
$ 11,520900
$ 111520.00
bathroom fixtures (2 toilets, 2 urinals, two hand sinks,
one mop sink, 3 floor drains)
Water
Trenching, water tap, line installation, connections,
60
If
$ 112.00
$ 61720.00
coordination, etc. for a complete utility
Water line connections
Internal connections through the building footing vault to
1
Is
$ 5,760.00
$ 51760.00
bathroom fixtures (2 toilets, 2 urinals, two hand sinks,
one mop sink, 1 drinking fountain)
Electrical
Trenching, line installation, connections, coordination,
50
If
$ 88.00
$ 4,400000
etc. for a complete utility
Electrical line connections
Internal connections through the building footing vault to
1
Is
$ 31800.00
$ 31800.00
bathroom items
Drain line
Water fountain to sewer
30
If
$ 88.00 $ 2,640.00
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Excavation
Building foundation vault, columns, (4' depth) etc.,
remove and dispose fill material
40
cy
$ 230.00
$ 9/200900
Grading and drainage
Site grading and drainage per plan
1
Is
$ 20,400.00
$ 20,400900
Asphalt
Asphalt paving per plan, including T patch
300
sf
$ 102.00
$ 30,600.00
Concrete
Concrete with curb, gutter and retaining curb, per plan
250
sf
$ 48.00
$ 12,000.00
ADA Ramp
Concrete ADA ramp, with truncated domes per plan
1
ea.
$ 2,600.00
$ 2,600.00
Concrete Unit Pavers
Sleeving
Building entry plaza and bike parking, install per plan and
details
Two 4" schedule 80 pvc sleeves in 3 locations, capped and
staked (six 20' sleeves total)
450
120
sf
If
$ 28.00
$ 34.00
$ 12/600900
$ 4,080.00
Building columns
Footing, connection to building column knife plate, stone
veneer
2
ea
$ 2,750.00
$ 5,500.00
Building footing vault preparation
Leveling, setting course
1
Is
$ 3,270.00
$ 3,270.00
Building footing vault installation
Crane and installation
1
Is
$ 7,880.00
$ 7/880900
Cut boulder benches
Install on site, provided by owner
2
ea
$ 600.00
$ 1,200.00
Drinking fountain
Install on site, provided by owner
1
Is
$ 5,760.00
$ 5,760.00
Bike maintenance stand
Install on site, provided by owner
1
Is
$ 1,480.00
$ 1,480.00
Reinstall signs
Reinstall with concrete footings
2
ea
$ 600.00
$ 1/050000
$ 51.00
$ 72.00
$ 11,000.00
$ 1/200000
$ 5/250600
Install bike racks
Building stone wainscot
Stone wainscot cap
Any other site construction items not noted above
Install per detail
2" Colorado buff stone veneer
2.5" Coping Piece
Note items if applicable
5
300
70
1
ea
ff
If
Is
$ 15,300.00
$ 5,040.00
$ 11,000000
Site Work Total
$196,880
Mobilization
Total
Demolition and Site Prep
Total�
Erosion and Sedimentation Controls
Total
•. :�
all
$
2801000mOO
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Construction
BUSINESS INFORMATION
The NICX Mission:
ompany
Our Focus is the construction and expansion of critical infrastructure while supporting
our community and local development.
Overview:
As a leader in the Construction Industry, NICX is a turnkey partner for the maintenance
and deployment of Public Infrastructure With over 50 years of combined core team
experience and well -established industry relationships NICX is an Ideal Partner for all
types of communications focused infrastructure construction.
Who is NICX:
NICX was founded in 2020 by Scott Wendland and Erica Porter as a Family oriented,
Women -Owned construction company specializing in infrastructure deployments. NICX
company startup and growth was privately funded by its founders and has grown its
team and resources appropriately to effectively service its current and re -occurring $8M
annual gross revenue. NICX is currently under contract for $14M in long-term projects
constructing and maintaining telecommunications networks and civil infrastructure and
has built over $1 M in liquid assets. With the proven success of their construction
offerings NICX is rapidly expanding Both their General Civil and Telecommunications
construction offerings to their Public and Private clients
NICX is Headquartered in Wheat Ridge Colorado with Laydown yards in Conifer,
Dacono, Snowmass, and Colorado Springs. NIXC Employs only permanent Colorado
Residents and has a full-time staff of 27 professionals.
LEADERSHIP:
Scott Wendland President and Director of Construction
Mr. Wendland has worked at the forefront of cutting -edge technology deployment and
construction in the telecommunications industry for over 20 years. Mr. Wendland started
his career as an electrical engineer for a defense contractor until 2005 when he launched
several successful startups focused on the deployment of telecommunications and
technology. In 2012 Mr. Wendland joined the EPC industry leader Black and Veatch Inc.
7 1 Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Construction
company
As a Construction Manager and eventual Director of several national programs in 5G
deployment, Smart Cities planning, and Public Safety. In 2020 Mr. Wendland launched
NICX Construction, A general contracting company focused on public infrastructure.
Mr. Wendland is a nationally recognized leader and expert in the telecom construction
space and Public Contracting as well as a thought Leader for associations such as: The
Cellular Telecommunications and Internet Association, the Board of Certified Safety
Professionals, and the National Wireless Safety Association.
Erica Porter, COO
Mrs. Porter Has an extensive Career in Executive Leadership and Operations
Management and Investment Management. She is a driven, self-starter with a
diversified set of skills, and experience. A seasoned communicator with extensive
experience organizing programs and operations of varying sizes and complexity. After
earning 2 Degrees from university of Colorado boulder and a few years at a private
investment firm Mrs. Porter founded a successful small business providing high-level
contract executive assistance and operations management. In 2013 Mrs. Porter took on
a significant leadership role as a Program Director for a $15M ARC thrift stores initiative
where she was recognized as an inspired Leader and Innovator within the retail and
non-profit communities of Colorado. In 2021 Mrs. Porter made a personal investment in
NICXco and stepped in to take over as Chief Operations Officer.
PROJECT TEAM
Construction Manager and Civil Superintendent —Galen Phillips
Joining NICX through the merger of his Company Elk Horn Construction in 2020, Galen
Brings 20+ years as an owner operator in heavy civil construction in the state of
Colorado, he has managed numerous successful high profile projects for clients such as
Town of Vail and City of Aspen.
Field Inspector, Quality and Safety Superintendent —Jason Gemmer
With over 20 years in public infrastructure construction management and inspections
experience working for Denver water, Jason Joined the NICX team in 2022 where he
leads the NICX safety and quality assurance program.
8 (Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
1�11 IlkT
Construction Company
Project controller - Jessie Romanin
A seasoned project controller and PMP certified professional with over 10 years of
experience, Jessie facilitates effective project team communication, coordination, and
execution. Jessie joined the NICX Team in 2022 and is consistently critical to NICX
project excellence.
Project Accountant —Sarah Phillips
With a background in medical billing Sarah Joined the NICX team in 2020 as the
director of Finance — Sarah is extremely well versed in all aspects of telecommunications
construction accounting, invoicing and financial record keeping for both public and private
projects.
9 � Network Infrastructure Construction Company.
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
Nelwai< WdrasbucW m Construction Co
Recent and Current Project Resumes
CLIENT:
Town of Lyons, Colorado.
SCOPE OF WORK:
Improve and re -grade Parking lot and Hiking paths
Install natural stacked stone retaining walls
Stick -build public restroom
Replace pedestrian Bridge decking
- Landscaping and general site improvements
PROJECT VALUE:
$352,756200
PROJECT PHOTOS.
1�Networlc Infrastructure
Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
_I- >>�
Networf< Infrasbudure Construction Co
CLIENT:
St Vrain School District
SCOPE OF WORK:
Install drain channel
- Install Ditch Armoring
Install Crusher Fine pathway
- Repair Concrete stairs
PROJECT VALUE:
$49,975.00
PROJECT PHOTOS.
L'
�
7M
•
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2� Network Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
CLIENT:
Nets nrk Inftqtnichire Construction Co
- Allison Bendele, Boulder Biopath, Hilltop Polo.
SCOPE OF WORK:
Import Road Base/ structural Fill for new access road 2100CY+
Place Culverts
Screen and process 800cy onsite materials for project use
Place road stabilization
- Excavate 1100CY Dirt for Pond enlargement
Add 24"- rip rap bank 7100SF stabilization for pond armament
PROJECT VALUE:
- $85,000.00
PROJECT PHOTOS:
3�Networl< Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
7im
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4� Network Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Networfc kif asbuctum Consbucbm Co
CLIENT:
- EL PASO COUNTY SHERRIF'S DEPARTMENT
SCOPE OF WORK:
- SHADE STRUCTURE FOR VEHICLE STORAGE
RESTROOM TRAILER
- SHOOTING RANGE
PROJECT VALUE:
$365,000.00
PROJECT PHOTOS:
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5�Networl< Infrastructure Construction Company, LLC
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
CLIENT:
Santiago Garcia, Shaw holdings
SCOPE OF WORK:
Install Custom fence 2400SF
Remove, Regrade and Level Bike Park
- Re -grade and correct drainage and slope on access road
Install Culvert
PROJECT VALUE:
$108,000800
PROJECT PHOTOS:
S�Network Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
CLIENT:
- Brandon Rayburn, Boingo Wireless
SCOPE OF WORK:
Cut and grade access road
Excavate and install 26x26 concrete tower foundation
Screen and process onsite materials
- Install Precast building
- Install site electrical connections
- Install 110' self-supporting tower
Grade, prepare and surface access road and Parking area
Install DOD spec security fencing 400'
PROJECT VALUE:
$180,000.00
PROJECT PHOTOS:
6�Networ!< Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
A
1
CLIENT:
- CITY OF LONE TREE
SCOPE OF WORK:
Cut in New Sidewalk and ADA Ramp
Install 7800 SF retaining wall
PROJECT VALUE:
ddddP $641000@00
PROJECT PHOTOS:
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7� Network
Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
CLIENT:
- Boulder Valley School District
SCOPE OF WORK.
Excavate and Repair Sewer line install cleanouts
backfill compact and replace sidewalk and street
Restoration
PROJECT VALUE:
$29,000.00
PROJECT PHOTOS.
,A
8�Network Infrastructure Construction Company, LLC.
DocuSign Envelope ID: C008DD75-C384-4A6D-86A2-D87554FD3E6E
Contractor License Location
License Number
Expiration Date
Arapahoe County
GEN23-0124-A
12/21/2024
City of Arvada
AEC9607
1/31/2024
City of Aspen - Pitkin County (Low Voltage)
230&0357
City of Aspen - Pitkin County (Commercial)
LC-000374
8/15/2026
City of Aurora commercial contractor lic
2023 2334423 00 CL
7/1/2024
City of Aurora - ROW
2023-2337448
7/1/2024
City of Boulder
LIC-00995971
6/17/2024
Boulder County
CON-23-0043 class B
4/3/2026
Cty of Brighton
CL-15050 Class B
1/26/2024
City of Broomfield
No: 01-24-15381
2/12/2024
Chaffee County
None required
Commerce City
6232
12/31/2024
City of Denver
LIC00250321
5/31/2024
City of Golden
TL FC 00846
7/11/2024
Gunnison County
Jefferson County
1018450
7/16/2024
Town of Dillon - Business License
2022 -4384 2023-005972
12/31/2024
Town of Erie
EXC-003952-2022
12/31/2023
Town of Erie - Business Licenses
131.001532-03-2022
12/31/2023
Lafayette
23-00029
1/30/2024
Town of Lyons
4617
12/31/2023
Northglenn - ROW
23-110W-094
12/31/2023
Northglenn- CITY
23NGN-A-4362
12/31/2023
Town of Snowmass - Business License
45364
5/31/2024
Town of Snowmass - Contactor License
22SMV-Clas4-1133
9/27/2026
City of Lone Tree
11957
NONE
Town of Basalt
23027
12/31/2024
City of Thorton
CLB202302365
9/26/2024
Adams County
GEN22-0540
8/28/2024
Park County
4120
12/31/2023
Superior
registered
12/31/2023
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
OFFICE OF THE SECRETARY OF STATE
OF THE STATE OF COLORADO
CERTIFICATE OF FACT OF GOOD STANDING
I, Jena Griswold, as the Secretary of State of the State of Colorado, hereby certify that, according to the
records of this office,
Network Infrastructure Construction Company
is a
Corporation
formed or registered on 11/02/2020 under the law of Colorado, has complied with all applicable
requirements of this office, and is in good standing with this office. This entity has been assigned entity
identification number 20201949851 .
This certificate reflects facts established or disclosed by documents delivered to this office on paper through
10/05/2023 that have been posted, and by documents delivered to this office electronically through
10/06/2023 @ 11:51:42 .
I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed, and issued this
official certificate at Denver, Colorado on 10/06/2023 @ 11:51:42 in accordance with applicable law.
This certificate is assigned Confirmation Number 15381734
Secretary of State of the State of Colorado
Notice: A certificate issued electronically from the Colorado Secretary of State's website is fully and immediately valid and effective.
However; as an option, the issuance and validity of a certificate obtained electronically may be established by visiting the Validate a
Certificate page of the Secretary of State's website, https://ivti,iIii7.coloradosos.gov/hiz/CertificateSearchCriteria.do _entering the
certificate's confzr•ntation number displayed orz the certifrcate, and following the instructions displayed. Confirming the issuance o_f a certifrcate
is merely optional and is not necessary to the valid and effective issuance of a certificate. For more information, visit our website,
https://wimv.coloradosos.gov click `Businesses, trademarks, trade names" and select "Frequently Asked Questions. "
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
DocuSign Envelope ID: 26811AC7-ADC1=-4677-f3C413-12DF6BOD9327
B1D BOND
KNOW ALL PERSONS BY THESE PRESENTS, That we, the undersigned,
Infrastructure Construction Compa
of
as Principal, hereinafter
referred to as "Principal", and The Gray Casualty &Surety Company ,
a corporation organized under the laws of the State of Louisiana , and
qualified to transact business in the State of Colorado, as "Surety" are held and firmly bound unto
the City of Aspen, Colorado, as obligee, hereinafter referred to as "City," in the penal sum of:
Five Percent of Bid Amount Dollars
($ 5% of Bid Amount ), lawful money of the United States of America, for the Payment of which
sum, well and truly to be made to the City, we bind ourselves, and our heirs, executors,
administrators, successors, and assignees, jointly and severally, by these presents:
WHEREAS, said Principal has submitted a bid for construction of
Project No. 230831 ITB - Herron Park Site Work
NOW THEREFORE, if the City shall accept the bid of the Principal and the Principal shall enter
into a Contract for Construction with the City in accordance with the terms of such Bid, and given
such bond or bonds as may be specified in the Bid Package or Contract Documents with good
and sufficient surety for the faithful performance of such contract and for the prompt payment of
labor and material furnished in the prosecution thereof, or in the event of the failure of the
Principal to enter such Contract for Construction and give such bond or bonds, if the Principal
shall pay to the City the difference not to exceed the penalty hereof between the amount specified
in said bid and such larger amount for which the Principal may in good faith contract with another
party to perform the work covered by said Bid, then this shall be null and void, otherwise to remain
in full force and effect in law.
SIGNED AND SEALED this 6th
PRINCIPAL: Netpvofk Infrastructure Construction Com
By:
Title: President
SURETY:
The Gray Casualty &Surety Company
jtle; Troy Staples, Attorney -in -Fact
v_
Attest:
October
(seal)
2023
(seal)
Andrea Connolly -Dees
(Accompany this bond with certified copy of General Power of Attorney from the Surety Company
to include the date of the bond.)
BB1-971.doc 'Bt31
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ACKNOWLEDGMENT OF PRINCIPAL (Individual)
State of
County of
On this
day of
in the year
before me personally comes)
to me known and known to me to be the persons) who (is) (are) described in
and executed the foregoing instrument and acknowledges) to me that he/she executed the same.
State of
County of
On this
Notary Public
ACKNOWLEDGMENT OF PRINCIPAL (Partnership)
in the year
a member of the
before me personally
co -partnership of
comes)
to me known and !mown to me to be the person who is described in and
executed the foregoing instrument and acknowledges to me that he/she executed the same as for the act and deed of the said co -partnership.
Notary Public
ACKNOWLEDGMENT OF PRINCIPAL (Corporation)
State of Colorado )
County of Jefferson )
On this 6th day of October in the year 2023 before me personally comes)
Scott Wendland to me known, who, being duly sworn, deposes and says that he/she is
the President of the _Network Infrastructure construction Company
the corporation described in and which executed the foregoing instrument; that he/sloe knows the seal
of the said corporation; the seal affixed to the said instrument is such corporate seal; that it was so affixed by the order of the Board of Directors of said
corporation, and that he/she signed his/her name thereto by like order.
Notary public
ACKNOWLEDGMENT OF SURETY
State of Minnesota )
County %J Dakota )
SARAH ANNC PHILLIPS
Notary Public
State of Coloradr,
Notary ID 4 2021 d031550
ivl Commission Expires MW2025
On this 6th day of October, in the year 2023, before me personally comes) Troy Staples, Attorneys) -in -Fact of The Gray Casualty & Sure ty
Company wifih whom I am personally acquainted, and who, being by me duly sworn, says that he/she is (are) the Attorneys) -in -Fact of The Gray
Casual &Surety Company company described in and which executed the within instrument; that he/she know(s) the corporate seal of such company;
and that seal affixed to the within instrument is such corporate seal and that it was affixed by order of the Board of Directors of said company, and that
he/she signed said instrument as Attorneys) -in -Fact of the said company by like order.
ANDREA MARIE CONNOLLY DEES G"�
NOTARY PUBLIC - MINNESOTA Nota
My Commission Expires Jan. 31I 2025
Public
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
Pate Bonding, Inc.
10/06/2023 15:26
THE GRAY INSURANCE COMPANY
THE GRAY CASUALTY & SURETY COMPANY
Bond Number: LB000033
GENERAL POWER OF ATTORNEY
Principal: Network Infrastructure Constn�etion Company
Project: Project No. 230831 ITB -Herron Park Site Work
276326409603
KNOW ALL I3Y THESE PRESENTS, TI-IA'1' The Gray Insurance Company and The Gray Casualty &Surety Company, corporations duly
organized and existing under the laws of Louisiana, and having their principal offices in Metairie, Louisiana, do hereby make, constitute, and
appoint: Zachary Pate, Troy Staples, Jennifer Boyles, Thomas Lahl, Thomas Kemp, and Nicholas Hochban ol'St. Paul, Minnesota jointly
and severally on behalf of each of the Companies named above its true and lawful Attorneys) -in -Fact, to make, execute, seal and deliver, for and
on its behalf and as its deed, bonds, or other writings obligatory in the nature of a bond, as surety, contracts of suretyship as are or may be required
or permitted by law, regulation, contract or otherwise, provided that no bond or undertaking or contract of suretyship executed under this authority
shall exceed the amount of
$25,000,000.00.
This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of
Directors of both The Gray Insurance Company and The Gray Casualty & Surety Company at meetings duly called and held on the 261h day of
June, 2003.
'
RESOLVED, that the President, Executive Vice President, any Vice President, or the Secretary be and each or any of them hereby is authorized to
execute a power of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company bonds,
undertakings, and all contracts of surety, and that each or any of them is hereby authorized to attest to the execution of such Power of Attorney, and
to attach the seal of the Company; and it is
FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any
certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be
binding upon the Company now and in the future when so affixed with regard to any bond, undertaking or contract of surety to which it is attached.
IN WITNESS WHEREOF, The Gray Insurance Company and The Gray Casualty &Surety Company have caused their official seals to be hereinto
aI fixed, and these presents to be signed by their authorized officers this 4m day of November, 2022.
.-
`a 500000q� U R A•,�r �,6` RAM& y
Q
SEAL 1n BYo Michael T. Gray
_ a . President100418
.••� A The Gray Insurance Company
State of Louisiana
Cullen S. Piske
President
The Gray Casualty & Surety Company
ss:
Parish of Jefferson
On this 4, day of November, 2022, before me, a Notary Public, personally appeared Michael T. Gray, President of "I'he Gray Insurance
Company, and Cullen S. Piske, President of The Gray Casualty & Surety Company, personally known to me, being duly sworn, acknowledged
that they signed the above Power of Attorney and affixed the seals of the companies as officers of, and acknowledged said instrument to be the
voluntary act and deed, of their companies.
Leith /Ar'i,C'
Notary Public
Notary ID No.92653
gleans Parish, Louisiana
U
Leigh Anne Henican
Notary Public, Parish of Orleans State of Louisiana
My Commission is for Life
I, Mark S. Manguno, Secretary ofThe Gray Insurance Company, do hereby certify Uhat the above and forgoing is a true and correct copy of a
Power of'Attoriey given by the companies, which is still in full force and effect. iN WITNESS WHEREOF, I have set my hand and
affixed the seals of the Company this 8h day of October , 2023 .
I, Leigh Anne Henican, Secretary of The Gray Casualty &.Surety Comip�ny ; dp hereby certify that the above and forgoing is a true and correct
copy of a Power of Attorney given by the companies, avhich is-st' n i'h1uIrfear( e., nd effect. 1N WITNESS WHEREOF, I have set my hand
and affixed the seals of the Company this eh day of &tel er
A • �'� /j �j/� /y�V U V'i� j �'`/L_.rr - ��'•� u a A'H o CJ?:�Y
_ S EAL3 �= SEAL )o
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General Conditions for Construction Contracts
(Version GC-97-2)
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
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......................................................................................................................................................................................................0 5
Article 2 -Preliminary Matters.
2.1. Delivery of Bonds............................................................................................................................................................................................ 8
2.2. Copies of Docurnents...................................................................................................................................................................................... 8
2.3. Commencement of Contract Time, Notice to Proceed................................................................ 8
2.4. Starting the Project.......................................................................................................................................................................................... 9
2.5, Before Starting the Project.............................................................................................................................................................................. 9
2.6. Pre -construction Conference 9
2.8 Project Progress Meetings................................................................................................................................................................................ 9
Article 3 -Contract Documents, Intent, Amending, Ownership, Escrow Sid Documents
3.1. Intent.......................................................................................................................:....................................................................................... 10
3 AS Amending and Supplementing Contract Documents.................................................................................................................................... 10
3.6. Reuse of Docurnents....................................................................................................................................................................................... 11
3.7. Precedence of Docurnents............................................................................................................................................................................ 11
. Article 4 -Availability of Lands, Physical Conditions, Reference Points.
4.1. Availability of Lands...................................................................................................................................................................................... 11
4.2. Physical Conditions.......................................................................................................................................................................................... 11
4.2.1. Exploration and Reports................................................................................................................................................................................... 12
4.2.2. Existing Structures.......................................................................................................................................................................................... 12
4.2.3. Report of Differing Conditions...................................................................................................................................................................... 12
4.2.4. Engineer's Review..............................................................................a 12
4.2.5. Possible Document Change........................................................................................................................................................................... 12
4.2.6. Possible Price and Time Changes.................................................................................................................................................................... 12
4.3. Physical Conditions - Underground Facilities............................................................................................................................................... 12
4.3.1. Shown or Indicated......................................................................................................................................................................................... 12
4.3.2. Not Shown or Indicated. 0 0 0 * 0 0 * 0 S 0 0 a 0 a 0 0 a 0 1 0 0 4 0 5 4 * a 0 a 0 0 0 0 0 * 2 0 0 0 a a 0 a 0 1 0 5 a 0 1 0 5 * 0 9 9 0 0 0 * 0 0 a 0 a 0 4 a 0 * 0 0 a a 0 0 * 8 0 a a 0 t 0 0 a 0 6 * a 0 * * a * * 4 4 * 9 6 t 0 0 # 6 6 9 0 S 0 V 0 * 0 0 S 0 0 a 0 S a 0 0 a * a a # a * a a * #* 00 a a a a 0 0 *a 0 4 0 0 a a 0 a * # a a a* * a 4 0 * 4 we a 0 4 00 * 0 12
4AS Land Surveys & Reference Points................................................................................................................................................................. 12
4.5. Protection of Existing Vegetation................................................................................................................................................................. 13
4.6. Hazardous Materials...................................................................................................................................................................................... 14
4.7. Contractor's Representations.......................................................................................................................................................................... 14
Article 5 -Bonds, Indemnification, Liability, and Insurance
5.1. Performance, Payment, Maintenance and Other Bonds.............................................................................................................................. 15
5.2. Indemnification............................................................................................................................................................................................... 15
5.3. Contractor's Insurance.................................................................................................................................................................................... 15
5.4. City's Liability Insurance................................................................................................................................................................................ 17
Article 6 -Contractor's Responsibilities.
6.1. General Responsibilities................................................................................................................................................................................. 17
6.2. Supervision and Superintendence.................................................................................................................................................................. 17
6.3. Labor, Materials, and Equipment.............................................................................................................................................:.................... 18
6.4.-6.7 Reserved....................................................................................................................................................................... 18
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
6.8 Sub -contractors, Suppliers and Others........................................................................................................................................................... 19
6.9 Sub-contracting..............................................................................................................................................................
20
6.10 Patent Fees, Royalties, Permits.............................................................................................................................................. 2
6.11 Permits........................................................................................................................................................................ 20
6.12 Laws and Regulations......................................................................................................................................................6 20
6.13 Taxes............................................................................................................................................................................
6.14 Use of Premises................................................................................................................................................................. 2
6.15 Record Documents..........................................................................................................................................................
6.16 Safety and Protection........................................................................................................................................................ 2
6.17 Emergencies....................................................................................................................................................................
22
6.18 Shop Drawings and Samples.............................................................................................................................................. 22
6.19 Claim Release, Mechanics' Lien............................................................................................................................................ 23
6.20 Continuing the Work......................................................................................................................................................... 2
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.
Article 9 -Engineer's Status During Construction.
9.1. Ciry's Representative.................................................................................................................................................................................... 25
9.2. Visits to Site................................................................................................................................................................................................... 25
9.3. Project Representation.................................................................................................................................................................................. 25
9Am Clarification and Interpretation..................................................................................................................................................................... 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........................................................................................................................................................ . 2
9.9 Arbitration.....................................................................................................................................................................
27
9.10 Limitations on The Engineer's Responsibilities. a 6 4 0 a a 0 a 4 0 9 9 0 a a a 0 a a a 0 ad a a 0 a 40 a 9 0 a a 9 0 a 4 a 0 0 & 04 a 0 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. Down Time
10.6. Submittal Requirements and Waiver of Claims...................................................................................................... 29
Article 11add Changes of Contract Price.
11.1. Contract Price Adjustments................................................................................................................................................................................. 29
11.2. Contract Time Adjustments................................................................................................................................................................................. 29
11.3. Force Account Work............................................................................................................................................................................................ 30
11.4. Contract Sum Determination............................................................................................................................................................................... 30
11.5. Cost and Pricing Data............................................................................................................................................................................................ 32
11.6. Variation in Quantity of Unit Priced Items 32
Article 12 -Reserved.
Article 13 -Warranty and Guarantee (Maintenance Bond); Tests and Inspection; Correction, Removal
or Acceptance of Defective Work
13.1. Warranty............................................................................................................................................................................................................. 33
13.2. Access to Work................................................................................................................................................................................................... 34
13.3. Tests and Inspections........................................................................................................................................................................................... 34
13.4. Uncovering Work................................................................................................................................................................................................. 35
13.5. City May Stop the Work....................................................................................................................... 35
13.6. Correction or Removal of Defective Work 35
13.7. Correction Period................................................................................................................................................................................................. 35
13.8. Acceptance of Defective Work.............................................................................................................................................................................. 35
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
13.9. City May Correct Defective Work................................................................................................................................................................. 36
13.10. Unauthorized Work 36
Article 14 -Payments to Contractor and Completion.
14.1. Determination of Work Value............................................................................................................................................................................ 36
14.2. Application for Progress Payment....................................................................................................................................................................... 36
14.3. Contractor's 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. Prohibited 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
16.10. Successors and Assigns 45
16%11. Third Parties 45
16.12. Waiver..............................................................................................................................................................................0 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
DocuSign Envelope ID: C008DD75-C3844A6D-86A2-D87554FD3E6E
INTRODUCTION
The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all,
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
NACE
SSPC
AASHTO
VA
SICS
AISI
ANSI
ASME
ASTM
AWG
AWS
BAFO
CDOT
O&M
DHA
EBD
EIA
EPA
FCC
FHWA
FTA
HVAC
NBS
NEC
NTP
NESC
NFPA
OSHA
PHA
SAE
UL
UMTA
UD&FCD
American Society of Civil Engineers
National Society for Corrosion Engineers
Special Society for Paint Council
American Association of State Highway and Transportation Officials
American Insurance Association
American Institute of Steel Construction
American Iron and Steel Institute
American National Standards Institute
(formerly ASA and USASI)
American Society of Mechanical Engineers
American Society for Testing and Materials
American Wire Gauge
American Welding Society
Best and Final Offer
Department of Transportation, State of Colorado
Operations and Maintenance
Detailed Hazards Analysis
Escrow Bid Documents
Electronic Industries Association
United States Environmental Protection Agency
Federal Communications Commission
Federal Highway Administration
Federal Transit Administration
Heating, Ventilation, and Air Conditioning
National Bureau of Standards
National Electric Code
Notice to Proceed
National Electric Safety Code
National Fire Protection Association
Occupational Safety and Health Administration
Preliminary Hazards Analysis
Society of Automotive Engineers
Underwriter's Laboratories, Inc.
United States Department of Transportation, Urban Mass Transportation Authority
Urban Drainage and Flood Control District
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MUTCD Manual on Uniform Traffic Control Devices
1.2. Wherever used in these General Conditions or in the other Contract Documents the following terms have the
meanings indicated which are applicable to both the singular and plural thereof:
Addenda -Written or graphic instruments issued prior to the opening of Bids which clarify, correct or change the
bidding documents, Contract Documents, drawings, details or specifications.
Bid -The offer or proposal of the bidder submitted on the prescribed forms) setting forth the prices for the Work to be
performed.
Bidder -Any qualified responsible and responsive firm or corporation submitting a Bid for the Work.
Bid Package -All information and standard Contract Documents prepared by the City to assist potential bidders to
prepare their bids.
Bonds -Bid, performance, payment, maintenance bonds and other acceptable 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 revision in the Work within the
general scope of the Contract Documents, or authorizing an adjustment in the Contract Price or Contract Time, issued
on or after the Effective Date of the Contract for Construction.
City or Owner -The City of Aspen in Pitkin County, Colorado.
Contract -All contract documents attached to the Contract for Construction and made a part thereof as provided herein.
Contract Documents -The Contract including Invitation to Bid, Instructions to Bidders, Bid 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 Bid, and
Specifications identified in the invitation to Bid or attached as part of the Bid, 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 items)
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 111 the Contract Documents, 01 has been damaged prior to the Engineer's recommendation 0f
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final payment (unless responsibility for the protection thereof has been assumed by the City at Substantial Completion in
accordance with paragraph 14.5 or 14.6).
Drawings - The part of the Contract Documents which show the character and scope of the Work to be performed and
which have been prepared or approved by the Engineer.
Effective Date of the 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.
Field Order - A vcn•itten order affecting a change in the Work not involving an adjustment in the Conh•act 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, rules regulations, ordinances, procurement code and/or orders.
Notice of Award -The written notice by the City to the apparent successful bidder stating that upon compliance by the
apparent successful bidder with the conditions precedent enumerated therein, within the time specified, the City will sign
and deliver the Contract.
Notice to Proceed - A written notice given by the City to the Contractor fixing the date on which the Contract Time will
commence to run 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 fmal payments and which is to include such
supporting documentation as is required by the Contract Documents.
Project he total construction of which the Work to be provided under the Contract Documents maybe the whole, or
apart as indicated elsewhere in the Contract Documents.
Project Inspector The authorized Civil Engineer or Civil Engineering Technician, designated by the City Engineer to
observe construction, materials placement and testing and to prepare the Daily Construction Logs and field reports.
Punch List - A form or letter that lists all incomplete or deficient Bid items, and is prepared upon substantial completion
of the Work by the City 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,
equA
pment, construction systems, standards and workmanship as applied to the Work and certain administrative details
applicable thereto.
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Subcontractor - A firm or corporation having a direct contract with the Contractor or with any other Sub -contractor for
the performance of a part of the Work at the site.
Substantial Completion he Work (or a specified part thereof) has progressed to the point where, in the opinion of
the Engineer as evidenced by the Engineer's acceptance, is sufficiently complete, in accordance with the Contract
Documents, so that the Work can be utilized for the purposes for which it is intended. The terms "substantially
complete" and "substantially completed" as applied to any Work refer to Substantial Completion thereof. The term
Substantial Completion shall mean one hundred percent (100%) completion of the Work.
Special Conditions or Special Provisions -The part of the Contract Documents which amends or supplements these
General Conditions.
Supplier - A manufachuer, 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 site.
Underground Facilities -All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such
facilities or attachments, and any encasements containing such facilities which have been installed underground to
hrnish 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 successful completion of the Bid items.
Written Notice or Written Notice of Amendment - A written amendment of the Contract Documents, signed by the
City and the Contractor on or after the Effective Date of the Contract for Construction and normally dealing with the
non -engineering or non -technical rather than strictly Work -related aspects of the Contract Documents
ARTICLE 2 -PRELIMINARY MATTERS
2.1 Delivery of Bonds:
When Contractor delivers the executed Contracts to the Purchasing Department, the Contractor shall also deliver such
Bonds as the Contractor is be required to fiunish 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 reproduction.
2.3 Commencement of Contract Tine, 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 authorized 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.
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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 Worlc
shall be done at the site prior to the date on which the Contract Time commences to run and prior to a mandatory pre -
construction conference conducted by the City.
2.5 Before Starting the Project:
Before undertaking each part of the Work, the 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 Engineer any conflict, error or discrepancy which Contractor may discover and shall obtain a
written interpretation or clarification fi-om the Engineer before proceeding with any Work affected thereby.
2.5.1. Within Three Days after the Effective Date of the Contract (unless otherwise specified in the Special
Conditions or General Requirements), the Contractor shall submit to the Project Manager 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 identify the
specific steps the Contractor will take to ensure the highest quality in the
constructed Bid items.
2.5.1.4. A Work Zone Safety Implementation &Enforcement Plan with specific action
process.
2.5.2. Before any Work at the site is started, the Contractor shall deliver to the City and Purchasing Officer, copies of
certificates (and other evidence of insurance requested by the City) which the Contractor is required to purchase and
maintain.
2.6 Pre-consh•uction Conference:
Within Seven (7) Consecutive Calendar Days after the Effective Date of the Bid Award, and before the Contractor starts
the Work at the site, he/she and all of his/her sub -contractors 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 parties 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.
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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 fiom the Contract Documents as being required to produce the intended result will be supplied whether or not
specifically called for. When words which have a well-known technical or trade meaning are used to describe Work,
materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard
specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of
any governmental authority, whether such reference be specific or by implication, shall mean the latest standard
specification, manual, code or Laws or Regulations in effect at the time of opening of Bids (or, on the Effective Date of
the Contract if there were no Bids) except as may be otherwise specifically stated. However, no provision of any
referenced standard specification, manual or code (whether or not specifically incorporated by reference in the 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 from the Engineer.
3.2 Amending and Supplementing Contract Documents:
The contract Documents maybe amended to provide for additions, deletions and revisions in the Work or to modify the
terms and conditions thereof in one or more of the following ways:
3.2.1. A formal Amendment of the 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 maybe supplemented, and
minor variations and deviations in the Work maybe 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 Reuse of Documents:
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
oI the design details, drawings or specifications.
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3.4 Precedence of Contract Documents:
The Contract governs over the Contract Documents. A Change Order governs over ali 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 Availability of Lands:
The City shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed,
rights -of --way and easements for access thereto. The 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 fiom exercising ordinary skill and competence with respect to reliance
upon the accuracy of the technical data contained in such reports.
4.2.2. EXISTING STRUCTURES: Reference is made to the Special Conditions for identification of those drawings
Af 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 structures. The Contractor shall not, by virtue of this paragraph, be relieved from
exercising ordinary skill and competence with respect to reliance upon the accuracy of the technical data contained in
such drawings.
4.2.3. REPORT OF DIFFERING CONDITIONS: If the 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
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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 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 implementing any such change in the Work.
4.3 Physical Conditions - Underground Facilities:
4.3.1. SHOWN OR INDICATED: The information and data shown or indicated in the Contract Documents with
respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to the
City 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 responsibility for determining the existence of all Underground
Facilities, for reviewing and checking and potholing for all such information and data, for locating all
Underground Facilities shown or indicated in the Contract Documents, for coordination of the Work with the
owners of such Underground Facilities during construction, for the safety and protection thereof as provided in
paragraph 6.20 and for repairing any damage thereto resulting from the Work, the cost of all of which will be
considered as having been included in the Contract Price or approved as a Change Order.
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 could not reasonably have been
expected to be aware of, Contractor shall, promptly after 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 which 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 relocations 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 shall be responsible for the preservation of all public and private property and shall protect
carefully from disturbance or damage all land and property and shall protect carefully from disturbance or damage all
land and monuments and property marks until the Engineer has witnessed or otherwise referenced their location and
shall not remove them until directed.
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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 from any act, omission, neglect, or misconduct in his manner or method of executing the Work, or
at any time due to defective Work or materials, and said responsibility shall not be released until the project shall have
been completed and accepted.
4.5.3. When or where any direct or indirect damage or injury is done to public or private property by or on account of
any act, omission, neglect, or misconduct by the 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 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 removal, he/she shall restore those areas as directed
at the Contractor's expense.
4.5.9. The City may require that the Contractor replant an area that is damaged. The Work shall be done as directed by
the Engineer. If the Contractor is deemed to be responsible, then the replanting shall be done by the Contractor at his/her
expense. If the City is responsible, the costs will be reimbursed on a minor contract revisions (MCR) basis unless
existing cost proposal covers the Work.
4.5.10. With respect to replacement of trees and shrubs that have been damaged or destroyed, the following conditions
shall apply:
4.5.10.1. Trees or shrubs of replaceable size shall be replaced by the 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 from current prices of nurseries growing the
plants, plus the cost for planting and a guarantee for the first growing season.
4.5.10.2. When trees or shrubs beyond replaceable size have been damaged or destroyed, the value of such
trees or shrubs shall be calculated as per square yard of surface area measured at the ground level.
4.5.10.3. Any deduction assessed as liquidated damages under this section shall not relieve the Contractor from
liability for any damages or costs resulting fiom delays to the City, traveling public or other contractors.
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4.6 HaZardolls 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 Hazardous Materials.
4.6.2. If Hazardous Materials are discovered on or under real property which is owned by the City before the date of
Substantial Completion and Acceptance in accordance with Article 14 herein, which property is within the Project right-
of-way, the City shall, upon the request of the 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 all Laws and Regulations, and shall cause such real property to be restored to its condition existing
prior to such removal (except for the absence of Hazardous Materials), including, to the extent required, any grading and
reinforcement necessary to restore the weight -bearing capacity of such real property prior to such event. The City shall
remove the Hazardous Materials and restore the real property in such a manner as not to interfere with the 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 any party, including the Contractor, other than
an agency of the executive branch of State or Federal Government, the Contractor shall at the Contractor's sole cost and
expense, cause any such Hazardous Materials to be encapsulated, treated or removed from the Project right -of --way and
transported for final disposal in accordance with all applicable Laws and Regulations, and shall cause the Project right-
of-way to be restored to its condition existing prior to such removal (except for the absence of the Hazardous Materials),
including, to the extent required, any grading and reinforcement necessary to restore the weight -bearing capacity of the
Project right-of-way prior to such event.
4.6.4. The City shall not be responsible for the cost of and the removal or clean-up of Hazardous Materials found in
any materials brought to the Project Site, after the Project Site is turned over to the 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 claim against or defense
of any claims made by third parties in connection with Hazardous Materials present on the Project right -of --way or
contiguous properties owed or controlled by the City.
4.7 Contractor Representations
By executing the Contract, the Contractor represents that he/she has visited the site, familiarized him/herself with the
local conditions larder 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
S 1 Performance, Payment, and Maintenance Bonds:
5.1.1. 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 Two Years 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 Holding Certificates of Authority as
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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:
Professional agrees to indemnify and hold hannless the City, its officers, employees, insurers, and self-insurance pool,
from and against all liability, claims, and demands, on account of injury, loss, or damage, 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 and for an
amount represented by the degree or percentage 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 wrongful act, omission, error, professional error, mistake, negligence, or
other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent
of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation
claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional
agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or
demands at the sole expense of the Professional, 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. If it is determined
by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in
part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Profes-
sional for the portion of the judgment attributable to such act, omission, or other fault of the City, 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 reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain
insurance in sufficient amounts, duration, or types.
5.3.2. 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. Worker's Compensation insurance to cover obligations imposed by applicable laws for any
employee engaged in the performance of work under this contract, and Employefs' Liability insurance with
minimum limits of ONE MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION
DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease -
each employee. Evidence of qualified self -insured status may be substituted for the Worker's Compensation
requirements of this paragraph.
5.3.2.2. Commercial General Liability insurance with minimum combined single limits of TWO MILLION
DOLLARS ($2,000,000.00) each occurrence and THREE MILLION DOLLARS ($3,000,000.00) aggregate.
The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily
injury, broad form property damage (including completed operations), personal injury (including coverage for
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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.
5.3.2.3 Pollution Liahility insurance with a minimum combined single limit for bodily injury, property
damage, defense, and cleanup as a result of pollution conditions (sudden/accidental and gradual) arising from
contracting operations performed by on behalf of the contractor of not less than TWO MILLION DOLLARS
($2,000,000.00) each occurrence and THREE MILLION DOLLARS ($3,000,000.00) aggregate.
5.3.2.4 Builder's Rislc insurance with a minimum combined single limit for all improvements above ground in
the full contract value for those above ground improvements.
5.3.3. Except for- any Professional Liability insurance that maybe required, the policy or policies required above shall
be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every
policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not
contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above
shall contain any exclusion for bodily injury or property damage arising from 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 under
the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has
been given to the City of Aspen.
5.3.5 In addition, these Certificates of Insurance shall contain the following clauses:
Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the
intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage
for any and all losses covered by the above -described insurance. To the extent that the City's insurer(s) may
become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of
recovery or subrogation against the Contractor 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.
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.
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Location of operations shall be: "All operations and locations at which work in connection with the referenced
project is done "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 fifteen (15) days
prior to a policy's expiration date except for any policy expiring on the expiration date of this agreement or
thereafter.
5.3.6. Faihue on the part of the Contractor to procure or maintain policies provng 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 from
City.
5.3.7. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto.
5.4 City's Liability Insurance:
5.4.1. The parties hereto understand that the Ciry is a member of the Colorado Intergovernmental Risk Sharing
Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and
manual are kept at the City of Aspen Finance Department and are available to 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 agree that City is relying on, and does not waive or intend to waive
by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by
the Colorado Governmental Immunity Act, Section 2440401 et seq., C.R.S., as from time to time amended, or
otherwise available to City, its officers, or its employees. Further, nothing in the Contract Documents shall be construed
or interpreted to require or provide for indemnification of the 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 General Responsibilities:
6.1.1. The Contractor shall perform all of the Work in conformance with the Contract Documents.
6.1.2. The Contractor covenants and warrants that it shall be responsible for performing the Work, and that it shall do
or cause to be done the Work and services as required in the Contract Documents and any additional, collateral, and
incidental Work and services as may be necessary in order to complete the Project in accordance with the requirements
of the Contract Documents, shall be responsible for providing completed Work which meets the results required by the
Contract Documents, and shall achieve Substantial Completion (100% of the Work) by the Contract Time.
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 from the City to any of these persons or entities.
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6.2 Supervision and Superintendence:
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 Contractor 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 Contractor 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.
ill be the Contractor's representative at the site and shall have authority to act on behalf of the
The superintendent w
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 required
tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed,
connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable Supplier except
as otherwise provided in the Contract Documents; but no provision of any such instructions will be effective to assign to
the 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
6.7. Work Schedule:
6.7.1. 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 -construction Conference, the Contractor shall submit
schedules showing the order in which he/she proposed to carry on the Work, including dates at which he/she will start
the various parts of the Work, estimated date of completion of each part.
6.8 Substitutes of "or -equal" Items:
6.8.1. Whenever materials or equipment are specified or described in the Contract Documents by using the name of a
proprietary item or the name of a particular Supplier the naming of the item is intended to establish the type, function
and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or
equipment of other Suppliers may be accepted by the engineer if sufficient information is submitted by the 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
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items of material and equipment will not be accepted by the Engineer from 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 proposed
substitute will not prejudice the Contractor's achievement of Substantial Completion on time, whether or not acceptance
of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any
other direct contract with the City for work on the Project) to adapt the design to the proposed substitute and whether or
not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty.
All variations of the proposed substitute from that specified will be identified in the application and available
maintenance, repair and replacement service will be indicated. The application will also contain an itemized estimate of
all costs that will result directly or indirectly fiom 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 evaluating the
proposed substitute. The Engineer may require the Contractor to famish at Contractor's expense additional data about
the proposed substitute.
6.8.2. If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the
Contract Documents, the Contractor may furnish or utilize a substitute means, method, sequence, technique or procedure
of construction acceptable to the Engineer. The procedure for review by the Engineer shall be similar to that provided in
paragraph 6.8.1.
5.8.3. The Engineer will be allowed a reasonable time within which to evaluate each proposed substitute. The Engineer
will be the sole judge of acceptability, and no substitute will be ordered, installed or utilized without the Engineer's prior
written acceptance which will be evidenced by an approved Shop Drawing. The City may require the 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 Engineer and the Engineer's consultants in evaluating 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 5ubcontracto� s, 5uppliefs 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 Engineer 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 materials and equipment to be submitted to the
City in advance of the specified date prior to the Effective Date of the Agreement for acceptance by the City and the
Engineer and if the 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 objection in the bidding documents or the Contract Documents) of any such Subcontractor, Supplier or
other person or organization so identified may be revoked on the basis of reasonable objection after due investigation, in
which case the 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 right 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.
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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 Subcontractors or Suppliers or delineating 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 SubcontNacting and Petcentage of Work AwuNded to Subcontracto�•(s):
6.10.1. The Contractor may utilize the services of specialty Subcontractors on those parts of the
Work, which under normal contracting practices, are performed by specialty Subcontractors.
6.10.2 The Contractor shall not award Work to Subcontractors) in excess of forty 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
way.
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 patent rights or copyrights incident to the use in the
performance of the Work or resulting from the product or device not specified in the Contract Documents, and shall
defend all such claims in connection with any alleged infringement of such rights.
6.12 Permits:
Unless otherwise provided in the Special Conditions, the 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 Bids 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 investment fees.
6.13 Laws and Regulations:
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 Contractor'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 all costs
arising therefrom.
6.14 Taxes:
The Contractor shall pay all existing and future applicable Federal, State and local sales, consumer, use and other similar
taxes whether direct or indirect. Federal excise tax may not apply to materials purchased by the City. The Contract Price
shall include all other Federal, State, and/or local direct or indirect taxes which do apply. The Contract Price shall
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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 from Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The City is exempt
fi•om such taxes under registration numbers 9M2624. The Contractor and its Subcontractors shall apply to the Colorado
Department of Revenue for a Certificate of Exemption indicating that the Contractor or Subcontractor's purchase of
constuction material or building materials is for use, in a building, structure, or other public work owned and used by the
City.
6.1 S Use of Premises:
6.15.1. The Contractor shall confine construction equipment, the storage of materials and equipment and the
operations of workers to the Project site and land and areas identified in, and permitted by, the Contract Documents and
Aber 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. Al 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 structure, nor shall the Contractor subject any part of the Work or adjacent property to stresses or pressures that will
endanger it.
6.16 Record Documents:
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 Safety 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 maybe
affected thereby;
6.17.1.2. All the Work and materials and equipment to be incorporated therein, whether in
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storage on or off the site; and
6.17.1.3, Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, road-
ways, structures, utilities and Underground Facilities not designated for removal, relocation or
replacement in the course of construction.
The 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 fiom 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 6.17.1.2 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 furnish 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 Engineer 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 accidents including confined space entry and work in the confined
spaces.
6.18 Emergencies:
In emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, the
Contractor, without special instruction or authorization from the Engineer or the City, is obligated to act to prevent
threatened damage, injury or loss. 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 S1Zop Drawings and Samples:
6.19.1. After 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 Q) 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 Documents. 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
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cause a specific notation to be made on each Shop Drawing submitted to the Engineer for review and approval of each
such variation.
6.19.5. The Engineer will review and approve with reasonable promptness Shop Drawings and samples, but the
Engineer's review and approval will be only for conformance with the design concept of the Project and for compliance
with the information given in the Contract Documents and shall not extend to means, methods, techniques, sequences or
procedures of construction (except 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 required 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 Engineer's review and approval of Shop Drawings or samples shall not relieve the Contractor from
responsibility for any variation from 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 from
responsibility for errors or omissions in the Shop Drawings or from responsibility for having complied with the
provisions of paragraph 6.19.3.
6.19.7. Where a Shop Drawing or sample is required by the Specifications, any related Work performed prior to the
Engineer's review and approval of the pertinent submission will be the sole expense and responsibility of the Contractor.
6.20 Mechanics' Liens:
6.20.1. The Contractor covenants and agrees that, to the extent permitted by law, no claims or mechanics' liens against
public funds (mechanic's liens) or claims of any kind, will be permitted to arise, be filed or maintained against the
Project or any part of it, any interest in it or any improvements on it, against any moneys due or to become due from the
City to the Contractor, for or on account of any work, labor, services, materials, equipment or other items performed or
furnished for or in connection with the Project, and the Contractor for itself, its Subcontractors, laborers and material
suppliers and employees does waive, release and relinquish these claims or liens and all rights to file or maintain these
liens and agrees further that this waiver of liens and waiver of the right to file or maintain liens shall be independent
covenant and shall apply also to work, labor, services performed, materials, equipment and other items furnished under
any Change Order or supplemental agreement for extra or additional work in connection with the Project. The
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 against any and all loss, damages, liability, costs and expenses,
including legal fees and disbursements, which the City may sustain or incur in connection with the Project.
6.20.2. The Contractor also agrees as above for all of its Subcontractors, including but not limited to suppliers and
employees. If any of the Contractor'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 within thiro? 30) consecutive calendar days from he date of the filing, and upon the Contractor's failure to do
so the City shall have the right, in addition to all other rights and remedies provided under this Contract or by law, to
cause the liens or claims to be satisfied, removed or discharged by whatever means the City chooses, at the entire cost
and expense of the 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, and the moneys shall not be diverted to satisfy obligations
of the Contractor on other accounts or contracts. The Contractor shall pay Subcontractors within Ten (10) consecutive
calendar days of receipt of a progress payment from the City. The Contractor shall furnish sworn affidavits in
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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 Wo�•ka
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.
6.22 Contractor Facilities:
All temporary contractor facilities shall be in accordance with regulations and codes governing such conshuction. The
types of temporary construction facilities required for the Project may include, but are not necessarily limited to, the
following: (a) job site office space, (b) construction water distribution, (c) temporary closures, (d) temporary heat, (e)
hoists and temporary cranes, (f) temporary roads and paving, (g) construction aids and miscellaneous facilities, (h)
temporary power distribution, (i) temporary lighting, (j) temporary toilet facilities. All operations of the Contractor,
including storage of materials, upon the City's premises shall be confined to areas authorized or approved by Owner in
writing. Temporary buildings, storage sheds, shops, offices, may be erected by the Contractor only with the written
approval of the City and shall be built or provided with labor and materials furnished by the Contractor without expense
to the City. Such temporary buildings and utilities shall remain the property of the Contractor and shall be removed by it
at its expense upon completion of the Work.
ARTICLE 7 -OTHER WORK
7.1 Related Work at Site:
7.1.1. The City may perform other work related to the Project at the site by the City's own forces, have other work
performed by utility owners or let other direct contracts therefor which shall contain General Conditions similar to these.
The Contractor shall perform and coordinate his/her activities with other Contractors to avoid conflict and minimize
disruptions.
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 and safe access to the site and a
reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work, and
shall properly connect and coordinate the Work with theirs. The Contractor shall do all cutting, fitting and patching of
the Work that may be required to make its several parts come together properly and integrate with such other work. The
Contractor shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only
cut or alter their work with the written consent of Architect and the others whose work will be affected. The duties and
responsibilities of 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 and
such utility owners and other contractors.
7.1.3. If any part of the Contractor's Work depends for proper execution or results upon the work of any such other
contractor or utility owner (or the City), the Contractor shall inspect and promptly report to the Engineer in writing any
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 will constitute an acceptance of the other work as fit and proper for
integration with the Contractor's Work except for latent or non -apparent defects and deficiencies in the other work.
7.2 Coordination:
If the City contracts with others for the performance of other work on the Project at the site, the person or organization
of the activities among the various prime contractors may be identified in the Special Conditions, and the specific
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matters to be covered by such authority and responsibility may be itemized, and the extent of such authority and
responsibilities may be provided, in the Special Conditions. Unless otherwise provided in the Special Conditions,
neither the City nor the Engineer shall have any authority or responsibility in respect of such coordination.
ARTICLE 8 - CITY'S RESPONSIBILITIES
8.1. The City shall issue all communications to the Conhactor 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 from the cut-
off date for a pay estimate form.
8.3. The City represents that an amount of honey equal to the Contract Price has been duly appropriated in
accordance with the Municipal Code of the City of Aspen, under a purchase order. The City shall not issue any Change
Order or execute a Written Amendment requiring additional compensable work, which work causes the aggregate
amount appropriated by the City, unless the 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 City's Representative:
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. If the City designates another agent to represent the City at the site who is not the Engineer's agent or
employee, the duties, responsibilities and limitations of authority of such other person will be as provided in the Special
Conditions.
9.4 Clarification 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 from the overall intent of the Contract Documents. If a written clarification or
interpretation justifies an increase in the Contract Price or an extension of the Contract Time, the Contractor shall meet
with the Engineer and resolve the issue. All such requests or claims shall be submitted to the City Engineer.
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9. S 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 adjustment in the Contract Price or the Contract Time and are consistent with the
overall intent of the Contract Documents. These may be accomplished by a written request or a field order and will be
binding on the City, and also on the Contractor who shall perform the Work involved promptly. If the Contractor
believes that a field order justifies an extension of the Contract Time and the parties are unable to agree as to the extent
thereof, the 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:
9.7.1. In connection with the Engineer's responsibility for Shop Drawings and samples, see paragraphs 6.19.1.
through 6.20.1. inclusive.
9.7.2. In connection with the Engineer's responsibilities as to Change Orders, see Article 10 and Article 11.
9.7.3. In connection with the Engineer's responsibilities in respect of request for Payment, etc., see Article 14.
9.8 Decisions on Disputes:
9.8.1. The Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the
acceptability of the Work thereunder. Claims, disputes and other matters raised by Contractor relating to the
acceptability of the Work or the interpretation of the requirements of the Contract Documents pertaining to the
performance and furnishing of the Work and claims under Articles 11 and 12 in respect to changes in the Contract Price
or Contract Time shall be referred initially to the Engineer in writing with a request for a formal decision in accordance
with this paragraph, which the Engineer will render in writing within a reasonable time. Written notice of each such
claim, dispute and other matter by the Contractor will be delivered to the Engineer promptly (but in no event later than
thirty days) after the occurrence of the event giving rise thereto, and written supporting data will be submitted to the
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 condition precedent to any exercise by the Contractor of such rights 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 Contract Documents, judgment on the acceptability of the Work thereunder, or formal decision made by the
Engineer in accordance with paragraph 9.8.1. Any dispute not resolved by the initial decision of the Engineer shall be
decided by the City, who shall reduce the decision in writing and furnish a copy thereof to the 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 Responsibilities:
9.10.1. Neither the Engineer's authority to act under this Article 9 or elsewhere in the Contract Documents nor any
decision made by the Engineer in good faith e4ther to exercise or not exercise such authority shall give rise to any duty or
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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 Documents the terms as ordered as directed "as required", "as allowed", "as
approved" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or
"satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, review or judgment of
the Engineer as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate
the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise). The
use of any such term or adjective shall not be effective to assign to the Engineer any duty or authority to supervise or
direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the
Contract Documents.
ARTICLE 10 — CHANGES IN THE WORK
10.1 City Initiated 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 Construction.
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
Contract 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.
10.2 WYitten 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 reached 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 Change Order
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.
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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 orders, 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 dam 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 (10) 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 days 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 Waiver 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, 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 Contract Time.
10.6.2. The Contractor shall, within Ten (10) consecutive calendar days submit in detail, a Contractor Change
Request, and provide the Engineer a complete and itemized proposal which contains the information described in Article
11. The proposal shall also contain a detailed explanation, citing 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 claim 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.
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ARTICLE 11. CHANGE OF CONTRACT PRICE OR CONTRACT TIME
11.1 Contract Price Adjustments.
Ali adjustments to the Conh act 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 suffi-
cient substantiating data, including calculations, measurements, cost rec6rds, production rates, equipment types and
capacity, labor costs by craft 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 subsequently agreed upon multiplied by final verified quanti-
ties 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.
II.2 Contract Time Adjustments.
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 docLunented 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 force shall not be counted as an abnormal weather day for purposes of calculating weather related
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 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.
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11.3 Force Account 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 Force Account
basis. Adjustment shall be determined on the basis of reasonable expenditures and savings of those performing the
change in the Work including, in case of an increase in the Contract Amount, an allowance for overhead and profit
which shall not exceed the allowance described in 11.4.7 below. In such case, the 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, rates of pay, names and job classifications for all workers and size, type, identification number, rental rate and
hours of operation for equipment.
11.3.2 Unless otherwise provided in the Contract Documents, costs for the purposes of Force Account Work shall be
itemized daily on Daily Force Account Forms provided by the 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
amount may be reduced where necessary to take into account the cost of base contract Work, Work included in
approved Change Orders, Work described in Work Directive Changes, idle time for workers and/or equipment when
work could have been performed in other locations or the number of workers or amount of equipment provided exceeds
the number or amount required to perform the Work, unsatisfactory Work or Work which may be performed
concurrently with the changed Work and which cannot be easily segregated from the changed Work. The worker hours,
equipment hours, and materials installed shall be logged on the City of Aspen Engineering Department's Daily
Construction Log form for every day the work is performed.
11.4 Contract Sum Determination
11.4 In no event shall the charge or credit to the City associated with any change exceed the sum of the following:
11.4.1 Direct Labor. Actual net direct increase or decrease in the cost of the Contractor's labor for all work associated
with the change. Contractor's labor shall be limited to Davis -Bacon Act work categories or other labor (including
salaried field personnel) that perform the individual change in Work full-time. For shop work, the direct labor includes
workers who work directly on the item being manufactured or operators of equipment being used to handle items being
manufactured.
11.4.2 Labor Burden. Contractor's actual costs for workers compensation and liability insurance, payroll taxes, social
security and employees fringe benefits (including employer paid health insurance) imposed on the basis of payrolls.
This burden must reflect the variability of some burdens, i.e., social security. The burden shall include all small tools
which cost less than $200 apiece.
11.4.3 Direct Material, Supplies, Installed Equipment. Actual net direct cost of materials, supplies and equipment
incorporated in or consumed by the Work. If actual costs are not available, the cost shall be the lowest commercially
available price including all discounts and rebates and all applicable taxes. Cost shall be based on buying the material,
supplies and equipment in the largest practical quantity to receive quantity discounts.
11.4.4 Equipment. Actual net cost to the Contractor of owned and/or rented equipment other than small tools, to be
determined using the following method(s):
(1) Owned equipment operating costs shall be determined using accepted industry standard
forms and methods for "Owning and Operating Equipment" as described by the U.S. Army Corps of
Engineers (CO E) in its latest edition of the "Construction Equipment Ownership and Operating
Expense Schedule, Region V" (Document No. EP 1110-1-8, Volume 5).
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(2) Rental equipment costs shall be determined using actual invoiced rates less all discounts for
are equipment rental. Operating costs will be determined based on rates in the above -cited C.O.E.
manual.
(3) Mobilization/demobilization costs will be paid if the equipment is mobilized exclusively for
Work described in a change requested by the Engineer or a Change Order. If the equipment is used
on base contract work, no mobilization or demobilization cost will be paid.
Mobilization/demobilization cost will be based on using the least expensive means to mobilize or
demobilize. Equipment shall be obtained from the nearest available source. When the least
expensive methods are used, then costs shown in the actual invoice will be the basis for pricing.
11.4.5 Bonds, Insurance, Permits and Taxes. Actual increases or decreases in the cost of premiums for all bonds and
insurance, permit fees, and sales, use or similar taxes related to the Work.
11.4.E Subcontract Costs. Net cost of subcontractor work at any tier, provided that the cost of the subcontractor is
determined in accordance with the above requirements. When possible, the Contractor shall obtain quotes from two or
more subcontractors.
11.4.7 Overhead and Profit.
(1) Ten percent (10%) of the sum of Section 11.4.1 through Section 11.4.5 above, to cover a
profit for Work performed by that Contractor or subcontractor.
(2) Two percent (2%) of Section 11.4.6 above to cover Contractor's and subcontractor's
overhead and profit for work performed by the Contractor or subcontractor.
(3) Neither the Contractor nor any subcontractor, nor the City in the case of a credit, will
attempt to apply these percentage adjustments in a way which would pyramid either the cost or credit
because a subcontractor or subcontractors at any tier are involved.
11.4.8 Totals as Equitable Adjustment. The Contractor agrees that the total of the above constitutes an equitable
adjustment for any and all damages resulting from a change or due to delay or, disruption caused by the City. The
Contractor's choice of idling and Down Time shall not constitute an City's cause for delay or disruption.
11.5 Cost and Pricing Data
11.5.1 Certificate of Current Cost or Pricing. 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 sup-
porting any advance agreements and forward pricing rate agreements
between the offer or and the City that are part of the proposal.
Firm
Name
Title _
Date
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* Identify the appropriate number of the Change Notice.
** Date when pricing negotiations were concluded and price agreement
was reached.
*** Date of signing, which should be as close as practicable to the date
when the price negotiations were concluded and price agreement reached.
11.5.2 Vendor Statements. The 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.
11.5.3 Price Reductions for Defective Costs or Pricing Data. If it is later determined that pricing adjustments to the
Contract were not correct due to incomplete or inaccurate pricing data by the 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,
11.6 Ya��iation in Quantity of �Init Priced Items:
Where the quantity of aunit-priced item in this Contract is an estimated quantity and the actual quantity of the unit -
priced item varies more than 25 percent above or below the estimated quantity, an equitable adjustment in the Contract
Price may be made by a written Change approved by the Contractor and the Engineer. The equitable adjustment shall
be based upon any increase or decrease in cost due solely to the variation above 125 percent or below 75 percent of the
estimated quantity. The City at any time after the award of the Contract, may delete Bid items, provided that the total of
such deletions does not exceed hventy flve percent (25%) of the total Contract Price, and such deletions will not justify
an increase in other Bid prices. If the quantity variation is such as to cause an increase in the time necessary for
completing the Work the Contractor may request in writing, an extension of time only.
ARTICLE 12 -Reserved
ARTICLE 13 - WA,ItRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION,
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
13.1 Warranty:
13.1.1. The Contractor warrants and guarantees to City that all Work, whether supplied, furnished, installed, provided,
or performed by Contractor, a Subcontractor, or Supplier, will be in accordance with the Contract Documents and will
not be Defective. All Defective Work, whether or not in place, must be rejected, corrected or accepted as provided in
this Article 13. Work shall be performed in a skillful and workmanlike manner. Except where longer periods of warranty
are indicated for certain items, Contractor warrants Work, whether furnished, installed, provided, performed or supplied
by Contractor, a Subcontractor or Supplier, to be free from faulty materials and workmanship for a period of not less
than One Year from date of Substantial Completion, which One Year period shall be covered by the Maintenance
Bond and Payment Bond as specified in the Contract Documents. Landscaping replacement shall be warranted for two
growing seasons.
13.1.2. The 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 Contractor shall:
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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
Contactor shall be responsible for a Two Year term under the Maintenance Bond.
13.1.3.2. Require ali 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 wan anties and guarantees in writing to the City upon the request of the City.
13.1.4. Notwithstanding anything to the contrary above, the Contactor 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 Contact 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 (S) 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 after 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.
13.1.4.1. The preservation, packaging, packing, and marking, and the preparation for, and method of, shipment
of such equipment shall conform with the requirements of the Contract Documents.
13.1.4.2. When return, corrections, or replacement is required, transportation charges and responsibility for the
supplies and equipment while in transit shall be borne by the 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 warranties required by the Contact 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 Contactor shall not limit the City's rights under other
provisions of this Article with respect to latent defects, gross mistakes, or fraud.
13.1.8. Neither the foregoing nor any provision in the Contact 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 from the date of delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever
is later.
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13.2 Access to Work:
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 Conhact%J 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 Subcontractor(s).
13.3.2. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically
be inspected, tested or approved, the 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
bith any inspection or Retesting required in connection with the
e responsible for and shall pay all costs in connection w
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 Contractor's 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 others) that is to be inspected, tested or approved is covered without written
concurrence of the Engineer, it must, be uncovered for observation. Such uncovering and testing when required by the
Engineer shall be at the Contractor's expense.
13.3.5. Neither observations by the Engineer nor inspections, tests or approvals by others shall relieve the Contractor
from the Contractor's obligations to perform the Work in accordance with the Contract Documents.
13.4 Uncovering Work:
13.4.1. If any Work is covered contrary to the written request of the Engineer it must, if requested by the Engineer, be
uncovered for the Engineer's observation and replaced at the Contractor's expense.
13.4.2. If the Engineer considers it necessary or advisable that covered Work be observed by the Engineer or inspected
or tested by others, the 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
reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys and other professionals),
and the City shall be entitled to an appropriate decrease in the Contract Price,
3.5
City May Stop The Work:
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.
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116 Correction or Removal of Defective Work.
If required by the Engineer or the City, the Contractor shall promptly, as directed, either correct ail Defective Work,
whether or not fabricated, installed or completed, or, if the Work has been rejected by the Engineer or the City, remove
it fiom 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 engineers, architects, attorneys and
other professionals) made necessary thereby.
13.7 Correction Period:
If within Two Years after the date of Substantial Completion or such longer period of time as maybe 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 instructions, either correct such Defective Work, or, if it has been
rejected by City, remove it from the site and replace it with non -defective Work. If the 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 Work:
If, instead of requiring correction or removal and replacement of Defective Work, the City prefers to accept it, the City
may do so. The 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 dam after written notice of the Engineer or the City to
proceed to correct and to correct Defective Work or to remove and replace rejected Work as required by the Engineer or
the City in accordance with paragraph 13.6., or if the 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 from all or part of the site, 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
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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 Detet•ntination of Wotk 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 justification 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 from the Daily 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 RETAINMENT. The City shall make a deduction from the progress estimate in the
amount considered necessary to protect the interests of the City, pursuant to Section 24-91-103, CRS. That amount to be
retained shall be as follows: for contract price over $150,000.00 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 Project Manager may, at his/her
discretion, reduce the retained amount by fifty percent (5070) of the required retainage.
b) Upon one hundred percent (100%) completion and acceptance of the project, the Project Manager may
reduce the retainment to fifty percent %J the required retainage. In addition to standard retainment5 the City
shall withhold funds for claims against the Contractor filed by Subcontractors and Suppliers, pursuant to
Section 38-26-107, CRS.
NO PAYMENT. A progress payment shall not be made when the total value of the work
done since the last estimate amounts is less than $500.00.
14.2.3. LUMP SUM ITEMS. All lump sum Bid items shall be paid on a pro-rata basis determined by the percentage of
the total Work completed or if the Bid item is installed or completed One Hundred Percent (100%� in place and
accepted by the Engineer.
14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work,
the Contractor is responsible for prompt payments to all Subcontractors. As a minimum, the Contractor is responsible
for prompt payments to all Subcontractors. 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;
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The Contractor shall make payments to Subcontractors within 10 days of receipt of the Citys 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 10 days of receipt of payment from the next higher tier.
14.3 Contt•actof•'s Warranty of Title:
The Contractor warrants and guarantees that title to ail Work, materials and equipment covered by any progress pay
estimate approved for Payment, whether incorporated in the Project or not, will pass to the City no later than the time of
payment free and clear of all Liens.
14.4 Engineer's Review of Progress Payments.
14.4.1. The Engineer's recommendation of any payment requested in an Application for Payment will constitute a
representation by the Engineer to the City, based on the Engineer's on -site observations of the Work in progress and on
the Engineer's review of the pay estimate form and the accompanying data and schedules that the Work has progressed
to the point indicated, that to the best of the Engineer's knowledge, information and belief, the quality of the Work is in
accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final
determination of quantities and classifications for Unit Price Work in the Bid Proposal form, and to any other
qualifications stated in the recommendation), and that the 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 recommend any such
payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any
such payment previously recommended, to such extent as may be necessary in the 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;
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.
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 Contractor's performance or furnishing of the Work or Liens have been filed in
connection with the Work or there are other items entitling the City to a set-off against the amount recommended, but the
City must give the Contractor immediate written notice (with a copy to the Engineer) stating the reasons for such action.
4.5
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 hundfed pe�cent (100%) completed, in accordance with the Contract Documents, so that the project or specified
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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 Contractor agree constitutes a separately functioning and useable part of the Work
that can be used by the City without significant 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 Finallnspections:
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 Defective. 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 Final Progress 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 of persons, companies, or corporations that have furnished labor,
provisions, materials, team hire, sustenance, or other supplies used or consumed by 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
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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 unless an action is commenced within that time to enforce
such unpaid claim and a notice of Lis Pendens is filed with the City. At the expiration of such ninety day period, the City
shall pay to 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 fi-om such suit.
14.8.2. If, the remag 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 shall be made under the terms and conditions governing
final payment, except that it shall not constitute a waiver of claims.
14.10 Conn°actor'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,
or 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 Liquidated Damages:
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 of 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 be of the essence of the
Contract.
14.11.3. LIQUIDATED DAMAGES: Substantial Completion of the Construction Phase are of paramount importance
to the City. If any portion of the Work is not completed in accordance with any time extensions granted by the City, the
City will suffer damage, the extent of which will be impractical and extremely difficult to estimate accurately. Therefore,
as part of the consideration for executing the Contract, it is hereby agreed that the 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.
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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.
14.11.6. EXCUSABLE DELAYS -FORCE MAJEURE: If, by reason of Force Majeure, any party hereto shall be
rendered unable wholly or in part to carry out its obligations under this Agreement then such party shall give notice and
full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event
or• cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure,
shall be suspended during the continuance of the liability then claimed, but for no longer period, and any such party shall
remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall mean
acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the
Government of the United States or the State of Colorado or any political subdivision, except the City, or any civil or
military authority, insurrection, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods,
washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to
machinery, pipelines, or canals, or other causes not reasonably within the control of the party claiming such inability. It
is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party
having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable
dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the 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
1 S.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 Bankruptcy 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
bankruptcy or insolvency;
15.2.2. If a petition is filed against Contractor under any chapter of the Bankruptcy Code as now or hereafter
in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against
Contractor under any other federal or state law in effect at the time relating to bankruptcy or insolvency;
15.2.3. If the 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
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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. If the Con actor 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 2.9 as revised from time to time);
15.2.7. If the Contractor disregards Laws or Regulations of any public body having jurisdiction;
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 from 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 finished. If the unpaid balance of the
Contract Price exceeds the direct, indirect and consequential costs of completing the Work (including but not limited to
fees and charges of engineers, architects, attorneys and other professionals and court and arbitration costs) such excess
will be paid to the Contractor. If such costs exceed such unpaid balance, the Contractor shall 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 Contractor's 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 retention or payment of
moneys due the Contractor by the City will not release the Contractor from 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 from the City payment for all Work executed and installed in place and
any expense sustained plus reasonable termination expenses. The provisions of this paragraph shall not relieve the
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:
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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 Vietnam era 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, handicapped, a disadvantaged person, or a disabled or Vietnam 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 nondiscrimination 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 Vietnam era veteran in the selection and retention of Subcontractors, including
procurements of materials and leases of equipment.
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 Vietnam era veteran.
16.1.4. In all solicitations either by competitive bidding 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 Vietnam 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 commitments under this section and shall post copies of the notice in con-
spicuous 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 Tune:
16.3.1. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the
first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day
made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation.
16.3.2. A consecutive calendar day of twenty-four hours measured from midnight to the next midnight shall constitute
a day. A working day is any day; Monday through Friday of each week, also called business day.
16.4 General:
Should the City or the Contractor suffer injury or damage to person or property because of any error, omission or act of
the other party or of any of the other parry's employees or agents or others for whose acts the other party is legally liable,
claim will be made in writing to the other party within a. reasonable time of the first observance of such injury or
damage. The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any
applicable statute of limitations or repose.
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16.4.1. The duties and obligations imposed by 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 construed in any way as a limitation of, any rights and remedies available
to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee
or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated
specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which
they apply. All representations, warranties and guarantees made in the Contract Documents will survive final payment
and termination or completion of the Agreement.
16. S 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.
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 Interest:
No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any
interest, direct or indirect, in this Agreement or the proceeds thereof.
16.7 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest:
The 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 commercial 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.
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16.6 Payments Subjeet 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 amounts 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 Contractor Acceptance:
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 final payment due on termination, shall constitute a full and complete release of the City from any
and all claims, demands and causes of action whatsoever which the 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 bidding 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.
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 default by either parry 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 Attorneys 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 attorneys 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.
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16.16 Severabitity 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 and Records
The Contractor shall maintain all data and records pertinent to the Work performed under this Contract, in accordance
with generally accepted accounting principles, and shall preserve and make available all data and records until the
expiration of three Q)years from 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 Contract Documents. The authorized representatives of the U.S.
Department of Transportation, Comptroller General of the United States, the State of Colorado and the City shall have
access to all such data and records for such time period to inspect, audit and make copies thereof during normal business
hours. The 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.
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 Contract is completely or partially terminated, the records relating to the Work terminated shall be made
available for three years after any resulting final termination payment.
16.18.4. Records pertaining to appeals under the disputes clause or to litigation or the settlement of claims arising
under or relating to the performance of this Contract shall be made available until disposition of such appeals, litigation,
or claims.
Rev. 1/19/O1 (Secs. 14.2.1.1 & 13.1.1)
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