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RESOLUTION NO. W
Series of 1993
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONSTRUCTION AGREEMENT BETWEEN FOLKESTAD
CONSTRUCTION COMPANY AND THE CITY OF ASPEN, COLORADO, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF
OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a construction agreement
between Folkestad Construction Company and the City of Aspen, a true and accurate copy of
which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
That the City Council of the City of Aspen hereby approves that service agreement
between Folkestad Construction Company and the City of Aspen, a copy of which is annexed '
hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen
to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the /I day of (]~, 1993.
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ohn S. Bennett, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is
a true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held on the day hereinabove stated.
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CONSTRUCTION AGREEMENT
THIS AGREEMENT, made and entered into, this lIth day of April, 1994, by and
between the City of Aspen, Colorado, hereinafter referred to as the "City" and Folkestad
Construction, hereinafter referred ,10 as the "Contractor".
The Project is:
Aspen Icl'l, Gllrden West End Renovation
The Architect is:
Raul Gawrys and Associates P.C.
The Owner and Contractor agree as set forth below:
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of this Construction Agreement, Conditions of the
Contract (General, Supplementary and other Conditions), Drawings, Specifications, the City's
Request for Qualification Statements, Contractor's Qualification Statement, Addenda issued
prior to the execution of dlis Agreement, Clarifications to Scope of Work, odler documents listed
in this Agreement, and Modifications issued after execution of this Agreement; these form the
Contract, and are as fully a part of dle Contract as if attached to this Agreement or repeated
herein. The Contract represents the entire and integrated agreement between the parties hereto
and supersedes prior negotiations, representations or agreements, eidler written or oral. If
anything in the other Contract Documents is inconsistent with this Agreement, this Agreement
shall govern.
ARTICLE 2
THE WORK OF TmS CONTRACT
2.1 The Contractor shall execute dle entire Work described in the Contract Documents, except
to the extent specifically indicated in the Contract Documents to be the responsibility of others
as described in the Contract Documents.
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ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 The Contractor accepts the relationship of trust and confidence established by this
Agreement and covenants with the Owner to cooperate with the Architect and utilize the
Contractor's best skill, efforts and judgment in furthering the interests of the Owner; to furnish
efficient business administration and supervision; to make best efforts to furnish at all times an
adequate supply of workers, materials, equipment and supplies; and to perform the Work in
the best way and most expeditious and economical manner consistent with the interests of the
Owner. The Owner agrees to exercise best efforts to enable the Contractor to perform the
Work in the best way and most expeditious manner by furnishing and approving in a timely
way information required by the Contractor and making payments to the Contractor in
accordance with requirements of the Contract Documents.
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement and date that Contractor shall achieve Substantial Completion
of the entire Work is May l6, 1994. The Contractor shall pay Liquidated Damages in an
amount of $500,00 per calendar day for work after May 16, 1994 and $l500 per calendar day for
work after June l, 1994.
ARTICLE 5
CONTRACT PRICE
5.1 GUARANTEED MAXIMUM PRICE
5.1.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by the Contraqtor
not to exceed Two Hundred Five Thousand Two Hundred Eighty Seven Dollars ($205,287),
subject to additions and deductions by Change Order as provided in the Contract Documents.
Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price,
Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the
Contractor without reimbursement by the Owner.
ARTICLE 6
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CHANGES IN THE WORK
6.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work may be
determined by any of the methods listed in Article II of the General Conditions.
ARTICLE 7
COSTS TO BE REIMBURSED
7.1 The term Cost of the Work shall mean costs necessarily incurred by the Contractor in the
proper performance of the Work. Such costs shall be at rates not higher than the standard paid
at the place of the Project except with prior consent of the Owner. The Cost of the Work shall
include only the items set forth at Article ll.4 of the General Conditions.
ARTICLE 8
COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include those items set forth at Section l1.5 of the
General Conditions.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily perform with ,the
Contractor's own personnel shall be performed under subcontracts or by other appropriate
agreements with the Contractor. The Contractor shall obtain bids from Subcontractors and
from suppliers of materials or equipment fabricated especially for the Work and shall deliver
such bids to the Architect. The Contractor will then determine, with the advice of the Owner
and subject to the reasonable objection of the Architect or Owner, which bids will be accepted.
The Owner may designate specific persons or entities from whom the Contractor shall obtain
bids; however, inasmuch as a Guaranteed Maximum Price has been established, the Owner
may not prohibit the Contractor from obtaining bids from others. The Contractor shall not be
required to contract with anyone to whom the Contractor has reasonable objection. The
Contractor shall not contract with anyone to whom Owner or Architect has reasonable
objection.
ARTICLE 11
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ACCOUNTING RECORDS
11.1 The Contractor shall keep full and detailed accounts and exercise such controls as may
be necessary for proper financial management under this Contract; the accounting and control
systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be
afforded access to the Contractor's records, books, correspondence, instructions, drawings,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this
Contract, and the Contractor shall preserve these for a period of three years after final
payment, or for such longer period as may be required by law.
ARTICLE 12
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect by the Contractor and
Certificates for Payment issued by the Architect, the Owner shall make progress payments on
account of the Contract Sum to the Contractor as provided below and elsewhere in the
Contract Documents.
12.2 The period covered by each Application for Payment shall be one calendar month ending
on the last day of the month.
12.3 Provided an Application for Payment is received by the Architect not later than the first
day of a month, the Owner shall make payment to the Contractor not later than the tenth day
of the following month. If an Application for Payment is received by the Architect after the
application date fixed above, payment shall be made by the Owner not later than fifteen days
after the Architect receives the Application for Payment.
12.4 With each Application for Payment the Contractor shall submit payrolls, petty cash
accounts, receipted invoices or invoices with check vouchers attached, and any other evidence
required by the Owner or Architect to demonstrate that cash disbursements already made by
the Contractor on account of the Cost of the Work equal or exceed (1) progress payments
already received by the Contractor; less (2) that portion of those payments attributable to the
Contractor's Fee; plus (3) payrolls for the period covered by the present Application for
Payment; plus (4) retainage provided in Subparagraph 12.5.4, if any, applicable to prior
progress payments.
12.5.1 Each Application for Payment shall be based upon the most recent schedule of values
submitted by the Contractor in accordance with the Contract Documents. The schedule of
values shall allocate the entire Guaranteed Maximum Price among the various portions ofthe
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work, except that the Contractor's Fee shall be shown as a single separate item. The schedu1eof
values shall be prepared in such form and supported by such data to substantiate its accuracy as
the Architect may require. This schedule, unless objected to by the Architect, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
12.5.2 Applications for Payment shall show the percentage completion of each portion of the
Work as of the end of the period covered by the Application for Payment. The percentage
completion shall be the lesser of (l) the percentage of that portion of the Work which has actually
been completed or (2) the percentage obtained by dividing (a) the expense which has actually been
incurred by the Contractor on account of that portion of the Work for which the Contractor has
made or intends to make actual payment prior to the next Application for Payment by (b) the share
of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
12.5.3 Subject to other provisions of the Contract Documents, the amount of each progress
payment shall be computed as follows:
12.5.3.1 Take that portion of the Guaranteed Maximum Price properly allocable to completed
Work as determined by multiplying the percentage completion of each portion of the Work by the
share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of
values. Pending final determination of cost to the Owner of changes in the Work, amounts not
in dispute may be included as provided in the General Conditions, even though the Guaranteed
Maximum Price has not yet been adjusted by Change Order.
12.5.3.2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and
equipment delivered and suitably stored at the site for subsequent incorporation in the Work or,
if approved in advance by the Owner, suitably stored off the site at a location agreed upon in
writing.
12.5.3.3 Add the Contractor's Fee, less retainage of ten percent (10%). The Contractor's Fee
shall be computed upon the Cost of the Work described in the two preceding Clauses at the rate
stated in Paragraph 5.1.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner.
12.5.3.5 Subtract the shortfall, if any, indicated by the Contractor in the documentation required
by Paragraph l2.4 to substantiate prior Applications for Payment, or resulting from errors
subsequently discovered by the Owner's accountants in such documentation.
12.5.3.6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate
for Payment as provided in the General Conditions.
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12.5.4 Additional retainage shall be as set forth in the Supplemental Conditions.
12.7 Except with the Owner's prior approval, payments to Subcontractors included in the
Contractor's Applications for Payment shall not exceed an amount for each Subcontractor
calculated as follows:
12.7.1 Take that portion of the Subcontract Sum properly allocable to completed Work as
determined by multiplying the percentage completion of each portion of the Subcontractor's Work
by the share of the total Subcontract Sum allocated to that portion in the Subcontractor's schedule
of values, less retainage of ten percent (10 %). Pending [mal determination of amounts to be paid
to the Subcontractor for changes in the Work, amounts not in dispute may be included as provided
in the General Conditions even though the Subcontract Sum has not yet been adjusted by Change
Order.
12.7.2 Add that portion of the Subcontract Sum properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved
in advance by the Owner, suitably stored off the site at a location agreed upon in writing, less
retainage of ten percent (10 %).
12.7.3 Subtract the aggregate of previous payments made by the Contractor to the Subcontractor.
12.7.4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate
for Payment by the Owner to the Contractor for reasons which are the fault of the Subcontractor.
12.7.5 Add, upon Substantial Completion of the entire Work of the Contractor, a sum sufficient
to increase the total payments to the Subcontractor to one hundred percent (100%) of ithe
Subcontract Sum, less amounts, if any, for incomplete Work and unsettled claims; and, if final
completion of the entire Work is thereafter materially delayed through no fault of the
Subcontractor, add any additional amounts payable on account of Work of the Subcontractor in
accordance with the General Conditions.
12.8 Except with the Owner's prior approval, the Contractor shall not make advance payments
to suppliers for materials or equipment which have not been delivered and stored at the site.
12.9 In taking action on the Contractor's Applications for Payment, tile Architect shall be
entitled to rely on the accuracy and completeness of the information furnished by the Contraotor.
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ARTICLE 13
FINAL PAYMENT
13.1 Final payment shall be made by the Owner to the Contractor when (1) the Contract has
been fully performed by the Contractor except for the Contractor's responsibility to correct
defective or nonconforming Work, as provided in the General Conditions, and to satisfy other
requirements, if any, which necessarily survive final payment; (2) a final Application for
Payment and a final accounting for the Cost of the Work have been submitted by the
Contractor and reviewed by the Owner's accountants; and (3) a final Certificate for Payment
has then been issued by the Architect within seven (7) days of Contractor's request; such final
payment shall be made by the Owner not more than 30 days after the issuance of the
Architect's final Certificate for Payment.
13.2 The amount of the final payment shall be calculated as follows:
13.2.1 Take the sum of the Cost of the Work substantiated by the Contractor's final
accounting and the Contractor's Fee; but not more than the Guaranteed Maximum Price.
13.2.2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a
final Certificate for Payment as provided in the General Conditions or other provisions of the
Contract Documents.
13.2.3 Subtract the aggregate of previous payments made by the Owner.
lf the aggregate of previous payments made by the Owner exceeds the amount due the
Contractor, the Contractor shall reimburse the difference to the Owner.
13.3 The Owner's accountants will review and report in writing on the Contractor's final
accounting within 30 days after delivery of the final accounting to the Owner by the
Contractor. Based upon such Cost of the Work as the Owner's accountants report to be
substantiated by the Contractor's final accounting, and provided the other conditions of
Paragraph 13.l have been met, the Owner shall, within seven days after receipt of the written
report of the Owner's accountants, either issue to the owner a final Certificate for Payment
with a copy to the Contractor, or notify the Contractor and Owner in writing of the Owner's
reasons for withholding a certificate as provided in the General Conditions. The time periods
stated in this Paragraph 13.3 supersede those stated in the General Conditions.
13.4 lf, subsequent to final payment and at the Owner's request, the Contractor incurs costs
described in Article 7 and not excluded by Article 8 to correct defective or, nonconforming
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Work, the Owner shall reimburse the Contractor such costs and the Contractor's Fee applicable
thereto on the same basis as if such costs had been incurred prior to final payment, but not in
excess of the Guaranteed Maximum Price, if any. If the Contractor has participated in savings
as provided in Paragraph 5.2, the amount of such savings shall be recalculated and appropriate
credit given to the Owner in determining the net amount to be paid by the Owner to the
Contractor.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the General Conditions or
another Contract Document, the reference refers to that provision as amended or supplemented
by other provisions of the Contract Documents.
14.2 Payments due and unpaid under the Contract shall bear interest from the date payment
is due at the legal rate prevailing from time to time at the place where the Project is located.
ARTICLE 15
TERMINATION OR SUSPENSION
15.1 The Contract may be terminated by the Owner for cause as provided in Article l5 of the
General Conditions; however, the amount, if any, to be paid to the Contractor under this
Agreement shall not cause the Guaranteed Maximum Price to be exceeded.
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This Agreement is entered into as of the day and year Erst written above and is executed in a least
three original copies of which one is to be delivered to the Contractor, one to the Architect for use
in the administration of the Contract, and the remainder to the Owner.
CONTRACTOR ~LJ(~!:.-rAn CON~:)rRI.H_'nO,J
By: H~.cL-- 4/:,.q1
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CITY OF ASPEN, COLORADO
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Jo 'n S. Bennett, Mayor
REVIEWED;
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C1:ristopher Caruso, City Engineer
APPROVED AS TO FORM:
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Jo ster, City Attorney
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II
Clarifications to Scope of Work
1. The Scope of Work shall not include Division 7, Moisture Protection, of the Specifications.
2. The Scope of Work shall not include new painting and replacement of flooring material for
the interior spaces indicated on the Drawings and Specifications. Drywall surfaces shall be
finished with smooth surfaces, ready for paint. Existing rubber flooring shall be removed and
stored at the direction of the owner before commencing demolition.
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