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HomeMy WebLinkAboutresolution.council.011-04 RESOLUTION NO. 11 Series of 2004 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR CONSTRUCTION OF WEATHERED STEEL FRAME AND NON-RUSTING GRIP STRUT STEP TRE~. STAIRS FOR THE WEST CORNER OF THE RIO GRANDE PARKING._G~E, BETWEEN THE CITY OF ASPEN AND BTE CONCRETE, LLC, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Contract for construction of new stairs for the west corner of the Rio Grande Parking Garage, between the City of Aspen and BTE Concrete, LLC, a tree 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 Contract for construction of stairs for the west coruer of the Rio Grande Parking Garage, between the City of Aspen and BTE Concrete, LLC, a copy of which is annexed hereto and incorporated herein, and doeS hereby authorize the Mayor or 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 I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree 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. zK~-~.~Ko~, Cit, Y~Clerk- -- a,~ G:\tara\Resos\RioGrande.stairs.doc CITY OF ASPEN 130 South Galena Street Aspen Colorado 81611 (970) 920-5080 Project Title: Rio Grande Parking Garage West Stairs Replacemenf Project No. 2003-841 BID PACKAGE (Contract Documents) TABLE OF CONTENTS Pages Invitation to Bid Instruction to Bidders ........................................................................... IS 1- General Conditions ............................................................................... GC1- Special Conditions ................................................................................ SC 1- Technical Specifications .......................................................................... TS 1 - Qualification Statement ......................................................................... *QS 1- Bid Proposal ...................................................................................... *BP1- Bid Bond .......................................................................................... *BB1- Affidavit of Compliance ....................................................................... *AC 1 - Liquidated Damages Form .................................................................... *LD1- Notice of Award .................................................................................. NA1- Contract for Construction ...................................................................... **CC 1- Performance Bond .............................................................................. **PB 1- Payment Bond .................................................................................. **YB1- Maintenance Bond ............................................................................. **MB 1 - Contractor' s License ................... i ....................................................... **LC 1- Notice to Proceed ............................................................................. NP 1- Daily Construction Log Form ................................................................... ENG-304 Progress Pay Estimate Form ..................................................................... PE1- Change Order Form .............................................................................. COl- Claim Release Form .......................................................................... ***CR1- Project Closure Form ............................................................................ PC1- Appendices ........................................................................................ AP Appendix One, Site Locations Map .................................................... AP1 Note: Page Markings; ~e Pages to be executed prior to submitting sealed bids. ** Pages to be executed upon notice of award and prior to pre-construction conference. *** Pages to be executed during final stages or completion of work and prior to release of retainage. TC 1-971 .doc TC 1 City of Aspen INVITATION TO BID Sealed bids. Will be received by the City of Aspen, Colorado, at the Purchasing office, 130 South Galena Street, Aspen, Colorado, until, 10:00am MST, Monday, September 29, 2003 at which time the bids will be publicly opened and read aloud, for the following City of Aspen project: Rio Grande Parking Garage West Stair Replacement which includes however is nOt limited to the replacement of existing concrete stair with new steel stairs and associated construction. Complete Bid Packages are available on or after 8:00 am, Tuesday, September 9, 2003, from the City of Aspen, Colorado, at the Purchasing Department, 130 South Galena Street, Aspen, Colorado. A pre-bid conference will be held at 427 Rio Grande Place, at 10:00am, September 23, 2003. Attendance at the pre-bid conference is essential to convey the bidder's questions regarding the plans and specifications to the Engineering Department. The pre- bid conference is mandatory. ~ The City reserves the right to reject any or all Bids or accept what is, in its judgment, the Bid which is in the City's best interest. The City further reserves the right, in the best interests of the City, to waive any technical defects or '~rregularities in any and all Bids submitted. The Bid and Bid Security must be placed in one envelope securely sealed therein and labeled: "City Project Number: "2003-041" for "Rio Grande Parking Garage West Stair Replacement", and addressed to: City of Aspen Purchasing 130 South Galena Street Aspen, Colorado 81611 In addition to price, the criteria set forth in the Instruction to Bidders and any specific criteria listed in the bid documents may be considered in judging which Bid is in the best interests of the City. No bid may be withdrawn within a period of sixty (60) calendar days after the date fixed for opening bids. No bids will be considered which are received after the time mentioned, and any bids so received after the scheduled closing time will be returned to the bidder unopened. By: Rebecca Hodqson Purchasing OffiCer 310 East Main Street, Aspen, Colorado 81611 PRO.OF OF PUBLICATION STATE OF COLORADO } } ss, COUNTY OF PITKIN } I, Jenna Weatherred do solemnly swear that I am PUBLISH- ER of the ASPEN TIMES WEEKLY; that the same is a week- ly newspaper printed, in whole or in part, and published in the County of PITKIN, State of Colorado and has a general circu- lation therein; that said newspaper has been published con- tinuously and uninterruptedly in said County of Pitkin for a period of more than fifty-two consecutive weeks next prior to the first publication of the annexed legal notice or advertise- ment; that said newspaper has been admitted to the United States mails as second-class matter under the provisions of the Act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for .publishing legal notices and advedisements within the mean- mg of the laws of the State of Colorado. Ci~ o[ Aspen Sealed bids-- -- Wil't"8~ r~-eS~iv&d: by which time read aloud.. [or~ the City of oifi6e', ,l~i) d and which placement aiter 8:00 an 9,' 2003, from the City of Aspen.. Colo%hdo~ at,' ~he 15breha.sing Department, 130 Sbuth"Ghl~n:a S{i:~ei:;!~kspen,TC~l- &ttCn~nqg.at: t tO convey That the annexed legal notice or a~/:lvertisement was published in tl~e regular and entire issue of every number of said week- ly newspaper for the period of 'Z,.- consecutive insertions; and that the first publicati99,n of said notice was in the issue of said newspaper dated _.~¢'y~[ ~ A.D., 20 6'~ , and the last publication of said rnoti~ was in the issue of said dated ~fT.)~'-;;~O A. D. 20 O~ newspaper In witness whereof i have hereunto set my hand. Publish~; - ' / Subscribed and sworn to before me, a notary public in and for t,~e County of Pitkin, State of Colorado, this D..&. day of b' ~,~--, A.D., 20 (SEAL) ~¢f~'~CZF~' ~(~ ~ Notary Public My Commission expires ther .. CiB the lnstruc~ on to Bidders and ~y'~¢~'¢ifid ria listed in the bid documents may be cons~d- ~ea i~ ~ud¢ing ~ic~.Bid is'in'~h~: ~st interests of the City. ~.bid ~ay be withdraw~'~ithin a period'-of sixty (60) calendar days alter the date fixed for opening biCs. Nb bldg M]I.b& conSid- ered which' ~e' '~ceived hffef"the 'time tioned, and any bids gO ra~aiV~d afteiihe saaa- uled closiflg tim'~ Will be'retuihdd'to'the bidder unopened. . . .- .:. . . ... By:" Rebecca Hodgson - p~rch~ing Officer Published in The.Aspsn-Tl~es on September 13, ADDENDUM #1 Parking Garage West Stair Replacement General Construction Contract The City of Aspen is amending the General Construction Contract to include, the following: The Contractor will have twelve weeks to complete the work as specified in the Scope of Work. The contractor agrees to liquidated damages to be deducted from moneys due to them for any delayed calendar day beyond the total time at the rate of $250.00 per day. Addendum #2 City of Aspen 2003-041 Parking Garage West Stair Replacement Clarifications and Assumptions The upper portion of the stairs has pulled away from the brick wall and appears to continue below the stairs, and it is assumed the footing as well. The new design will expose more of the wall and brick. The cost of install new bricks has not been included in the estimate. Bricks at new construction may differ in color as the older bricks have been exposed to the elements. The weathering steel and non-rusting stair treads will not be painted. The anticipated design will not require caulking products, therefore specifications on paint and caulk have not been provided to the City. If it is determined that caulking is required, BTE will provide technical data for the City's consideration. BTE understands that the bituthane must be repaired if damaged during construction. BTE will endeavor to match the color scheme of the existing bricks, however the stairs will be weathering steel and will not match the adjacent painted bridge. BTE has permission to chisel a few bricks off the west wall in order to better match the colors. If BTE is unable to match the existing brick, they will attempt to salvage the existing bricks for reuse. If salvage does not work out, BTE will provide the City samples of the new brick for approval. The City will provide all the necessary permits at no cost to BTE. The City will allow BTE the use of three to five parking spaces in the adjacent parking lot for construction staging and parking at no cost. BTE workers may use the restroom in the parking facility or in the adjacent office building during construction in lieu of a portable toilet on site. City o~ ATpen City d~'torne~'s Office City of Aspen General Conditions Fo~ Construction Cont~a~s (~Tersion GC1-971) CCl-971.doc Page 6 CITY OF ASPEN, COLORADO GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS (Version GC-97-2) TABLE OF CONTENTS Article 1 - Abbreviations, Definitions, and Provisions of General Applicability. 1.1. Abbreviations .................................................................................................................................................................................................. 5 1.2. Definitions .................................................................................................................................................................................................... 5 Article 2 - Preliminary Matters. 2.1. 2.2. 2.3. 2.4. 2.5. 2.6. 2.8 Delive~ of Bonds ............................................................................................................................................................................................ 8 Copies of Documents ...................................................................................................................................................................................... 8 Commencement of Contract Time, Notice to Proceed .................................................................................................................................. 8 Starting the Project .......................................................................................................................................................................................... 9 Before Starting the Project .............................................................................................................................................................................. 9 Pre-construction Conference ........................................................................................................................................................................ 9 Project Progress Meetings ................................................................................................................................................................................ 9 Article 3 - Contract Documents, Intent, Amending, Ownership, Escrow Proposal Documents 3.1. 3.4. 3.6. 3.7. Intent ............................................................................................................................................................................................................... I 0 Amending and Supplementing Contract Documents ................................................................................... I0 Reuse of Documents ....................................................................................................................................................................................... 11 Pmcedenco of Documents ............................................................................................................................................................................ 11 Article 4 - Availability of Lands, Physical Conditions, Reference Points. 4.]. 4.2. 4.2.1. 4.2.2. 4.2.3. 4.2.4. 4.2.5. 4.2.6. 4.3. 4.3.1. 4.3.2. 4.4. 4.5. 4.6. 4.7. Availability of Lands ...................................................................................................................................................................................... 11 Physical Conditions ........................................................................................................................................................................... : .............. 11 Exploration and Reports ................................................................................................................................................................................... 12 Existing Structures ............................................................................................ 12 Report of Differing Conditions ...................................................................................................................................................................... 12 Engineer's Review ........................................................................................................................................................................................ 12 Possible Document Change ........................................................................................................................................................................... 12 Possible Price and Time Changes .................................................................................................................................................................... 12 Physical Conditions - Underground Facilities ............................................................................................................................................... 12 Shown or Indicated ......................................................................................................................................................................................... 12 Not Shown or Indicated .............. , .................................................................................................................................................................... 12 Land Surveys & Reference Points ................................................................................................................................................................. 12 Protection &Existing Vegetation ................................................................................................................................................................. 13 Hazardous Materials ...................................................................................................................................................................................... 14 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 ................................................................................................................................................................................ ! 7 Article 6 - 6.1. 6.2. 6.3. 6.4.-6.7 6.8 6.9 Contractor's Responsibilities. General Responsibilities ................................................................................................................................................................................. 17 Supervision and Superintendence ..................................................................... . ............................................................................................ 17 Labor, Materials, and Equipment .................................................................................................................................................................. 18 Reserved ....................................................................................................................................................................... 18 Sub-contractors, Suppliers and Others ........................................................................................................................................................... 19 Sub-contracting ............................... ,. .............................................................................................................................. 20 CC1-971 .doc Page 7 6.10 6.11 6.12 6.13 6.14 6.15 6.16 6.17 6.18 6.19 6.20 6.21 Patent Fees, Royalties, Permits .............................................................................................................................................. 20 Permits ........................................................................................................................................................................ 20 Laws and Regulations ...................................................................................................................................................... 20 Taxes ............................................................................................................................................................................ 21 Use of Premises ................................................................................................................................................................ 21 Record Documents ..................................................................... 21 Safety and Protection ........................................................................................................................................................ 21 Emergencies ............................................................................................................................................................ 22 Shop Drawings and Samples .............................................................................................................................................. 22 Claim Release, Mechanics' Lien ............................................................................................................................................ 23 Continuing the Work ......................................................................................................................................................... 24 Contractor's Facilities ........................................................................................................................................................ 24 Article 7 - Other Work. 7.1 7.2. Related Work at Site ...................................................................................................................................................................................... 24 Coordination ................................................................................................................................................................................................. 24 Article 8 - City's Responsibilities. 8.0 ............................ .............................................................................................................................. 25 Article 9 - Engineer's Status During Construction. 9.1. 9.2. 9.3. 9.4. 9.5. 9.6. 9.7 9.8 9.9 9.10 City's Representative .................................................................................................................................................................................... 25 Visits to Site ................................................................................................................................................................................................... 25 Project Representation .................................................................................................................................................................................. 25 Clarification and Interpretation ..................................................................................................................................................................... 26 Authorized Variations in Work ..................................................................................................................................................................... 26 Rejecting of Defective Work ........................................................................................................................................................................ 26 Shop Drawings, Change Orders and Payments .............................................................................................................................................. 26 Decisions on Disputes ........................................................................................................................................................ 26 Arbitration ..................................................................................................................................................................... 27 Limitations on The Engineer's Responsibilities .......................................................................................................................... 27 Article 10 - Changes in the Work. 10.1. City Initiated Changes ......................................................................................................................................................................................... 27 10.2. Work Directive Change ...................................................................................................................................................................................... 27 10.3. Change Order ....................................................................................................................................................................................................... 28 10.4. Contractor Change Request ................................................................................................................................................................................ 28 10.5. DownTime 10.6. Submittal Requirements and Waiver of Claims ................................................................................................................................................ 29 Article 11 - Changes of Contract Price. 11.1. Contract Price Adjustments ................................................................................................................................................................................. 29 11.2. Contract Time Adjustments ................................................................................................................................................................................. 29 I 1.3. Force Account Work ............................................................................................................................................................................................ 30 11.4. Contract Sum Determination ............................................................................................................................................................................... 30 l 1.5. 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 ................................................ i .................................................................................................................................................. 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 13.9. City May Correct Defective Work ...................................................................................................................................................................... 36 13.10.Unauthorized Work ............................................................................................................................................................................................ 36 Article 14 - Payments to Contractor and Completion. CCl-971 .doc Page 8 14.1 14.2, 14.3, 14.4. 14.5, 14.6, 14.7, 14.8, 14.9, 14.10. 14.11. Determination of Work Value ............................................................................................................................................................................ 36 Application for Progress Payment ....................................................................................................................................................................... 36 Contractor's Warranty of Title ........................................................................................................... 37 Engineer's Review of Progress Payments .......................................................................................................................................................... 37 Substantial Completion ...................................................................................................................................................................................... 38 Partial Utilization ................................................................................................................................................................................................. 38 Final Inspection ................................................................................................................................................................................................... 39 Final Progress Payment ........................................................................................................................................................................................ 39 Settlement Date, Notice to Subcontractors, Acceptance and Final Payment ...................................................................................................... 39 Contractor's Continuing Obligation ................................................................................................................................................................... 39 Time for Completion and Liquidated Damages .................................................................................................................................................. 40 Article 15 -Suspension of Work and Termination. 15.1 City May Suspend Work ................................................................................................................................................................................... 4:1 15.2. City May Terminate ............................................................................................................................................................................................ 41 15.5. Contractor May Stop Work or Terminate .......................................................................................................................................................... 42 Article 16 - Miscellaneous. 16.1 16.2. 16.3. 16.4. 16.5. t6.6 16.7. 16.8. 16.9. 16A0. 16.11. 16.12. 16.13. 16.14. 16.15. 16.16. 16.17. 16.18. Nondiscrimination ............................................................................................................................................................................................. 42 Giving Notice ..................................................................................................................................................................................................... 43 Computation of Time .......................................... '. ............................................................................................................................................... 43 General ................................................................................................................................................................................................................ 43 Independent Contractor Status .......................................................................................................................... : ................................................... 43 Prohibited Interest ............................................................................................................................................................................................. 43 Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest ...................................................................................... 44 Payments Subject to Annual Appropriations .................................................................................................................................................... 44 Contractor Acceptance ...................................................................................................................................................................................... 44 Successors and Assigns ...................................................................................................................................................................................... 45 Third Parties ...................................................................................................................................................................................................... 45 Waiver ................................................................................................................................................................................................................ 45 Agreement Made in Colorado ................................................................................................................................................................................ 45 Attorneys' Fees .................................................................................................................................................................................................... 45 Waiver of Presumption ..................................................................................................................................................................................... 45 Severability Clause ............................................................................................................................................................................................. 45 Audit and Records ............................................................................................................................................................................................. 45 Audit .................................................................................................................................................................................................................... 46 CC1-971 .doc Page 9 INTRODUCTION The Contract Documents are complementary, and what is required by any one shall be as binding as if required by 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 defmed 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 AIA 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 UMTA UD&FCD MUTCD 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 Proposal 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 Adminislxation 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 Manual on Uniform Traffic Control Devices CCl-971.doc Page 10 ' 1.2. Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereofi Addenda - Written or graphic instruments issued prior to the opening of Proposals which clarify, correct or change the Proposal documents, Contract Documents, drawings, details or specifications. Bid - The offer or proposal of the bidder submitted on the prescribed form(s) setting forth the prices for the work to be performed. Bonds - Bid, performance, payment, maintenance bonds and other acceptable instruments of financial security, furnished by the Contractor and his/her surety in accordance with the Contract Documents. Change Order - A written order to the Contractor authorizing an addition, deletion or 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 pro¥ided herein. Contract Documents - The Contract including Request for Proposals, Instructions to Proposers, the Proposal, Addenda, General Conditions, Special Conditions, Contract for Construction, Bid Bond, Notice of Award, Payment, Performance, and Maintenance Bonds, Drawings identified in the Contract Documents or attached as part of the Proposal; and Specifications identified in the Request for Proposals or attached as part of the Proposal, Affidavit of Compliance form, Liquidated Damages form, Contractor's License form, Daily Construction Log form, Progress Pay Estimate form, and Insurance Certificates. Contract for Construction - The written agreement between City and Contractor covering the Work to be performed. Contractor - The qualified responsible and responsive finn 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 theContract Documents as stated in the Contract for Construction (subject to the provisions of paragraph 11.4.), except for the Minor Contract Revisions item(s) which are subject m 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 doeg not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to the Engineer's recommendation of final payment (unless responsibility for the protection thereof has been assumed by the City at 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, finn, corporation or the City Engineer, named as such in the Contract Documents. CC1-971.doc Page 11 Field Order - A written order affecting a change in the Work not involving an adjustment in the Contract Time, issued by the Engineer to the Contractor during construction. Hazardous Materials - The term "Hazardous Materials" shall have the meaning set forth at 42 U.S.C. ' 9601(14) and regulations promulgated pursuant thereto. Laws and Regulations; Laws or Regulations - Laws, rules regulations, ordinances, procurement code and/or orders. Notice of Award - The written notice by the City to the apparent successful Proposer stating that upon compliance by the apparent successful Proposer with the conditions precedent enumerated therein, within the time specified, the City will sign and deliver the Contract. Notice to Proceed - A written notice given by the City m the Contractor fixing the date on which the Contract Time will commence to nm and on which Contractor shall start to perform Contractor's obligations under the Contract Documents. Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended (or a related purpose) before reaching Substantial Completion for all the Work. Procurement Code - Title 4 of the City of Aspen Municipal Code. Progress Pay Estimate - The form furnished by the City Engineering Department, which is to be used to record, approve, and process payment when the Contractor requests progress or final payments and which is to include such supporting documentation as is required by the Contract Documents. Project - The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part as indicated elsewhere in the Contract 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. Proposal - The offer or proposal of the Proposer submitted on the prescribed form(s) setting forth the Proposers approach to the Work, ability to complete the Work, and the Bid for the Work to be performed. Proposer - Any qualified responsible and responsive firm or corporation submitting a Proposal for the Work. Proposal Package - All information and standard Contract Documents prepared by the City to assist potential Proposers to prepare their Proposals. Punch List - A form or letter that lists all incomplete or deficient Proposal items, and is prepared upon substantial completion of the Work by the City Project Inspector. Shop Drawings - All drawings, diagrams, illustrations, brochures, schedules and other data which are specifically prepared by or for the Contractor and the sub-contractor to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams 'and other information prepared by a Supplier and submitted by the Contractor and the Sub-contractor to illustrate material or equipment for some portion of the Work. Specifications - Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto. Subcontractor - A fn'm or corporation having a direct contract with the Contractor or with any other Sub-contractor for the performance ora part of the Work at the site. Substantial Completion - The Work (or a specified part thereof) has progressed to the point where, in the opinion of the Engineer as evidenced by the Engineer's acceptance, is sufficiently complete, in accordance with the Contract Documents, so that the Work can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to any Work refer to Substantial Completion thereof. The term Substantial Completion shall mean one hundred percent (100%) completion oft he Work. CC1-971.doc Page 12 Special Conditions or Special Provisions - The part of the Contract Documents that amends or supplements these General Conditions. Supplier - A manufacturer, fabricator, supplier, distributor, material man or vendor who supplies materials or equipment for the Work including that fabricated to a special design but who does not perform labor at the site. Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services for materials; electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater and surface nmoffreinoval, 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 Proposal 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 Engineering Department, the Contractor shall also deliver such Bonds as the Contractor is be required to furnish in accordance with paragraph 5.1. 2.2 Copies of Documents: The City shall furnish to the Contractor up to three copies (unless otherwise specified in the Special Conditions) of the Contract Documents as are reasonably necessary for the execution of the Work. Additional copies will be furnished, upon request, at the cost of reproduction. 2.3 Commencement of Contract Time, Notice to Proceed: Prior to the City issuing a Notice to Proceed, either the City Manager or the Mayor of the City of Aspen shall approve the Contract Documents and shall execute the same. Notwithstanding any representations to the contrary made by City's employees, either directly, indirectly, or by implication, no Contract shall be in effect nor shall be binding upon the City until such time as the Contract is executed by the City pursuant to authority granted in accordance with Section 4-08-040 of the Procurement Code. The City shall issue a Notice to Proceed after either (a) the City Manager has executed the Contract, or (b) The City Council has 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 mn on the day indicated in the Notice to Proceed. 2.4 Starting the Project:' The Contractor shall start to perform the Work on the date when the Contract Time commences to nm, but no Work 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 CC1-971.doc .................. Page 13 Engineer any conflict, error or discrepancy, which Contractor may discover and shall obtain a written interpretation or clarification from the Engineer before proceeding with any Work, affected thereby. 2.5.1. Within Three Days atter the Effective Date of the Contract (unless otherwise specified in the Special Conditions or General Requirements), the Contractor shall submit to the Engineer for review: 2.5. I. 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 identi~ the specific steps the Contractor will take to ensure the highest quality in the constructed Proposal items. 2.5.1.4. A Work Zone Safety Implementation & Enforcement Plan with specific action process. 2.5.2. Before any Work at the site is started, the Contractor shall deliver to the City and the Engineer, copies of certificates (and other evidence of insurance requested by the City) which the Contractor is required to purchase and maintain. Z6 Pre-construction Conference: Within Seven (7) ConSecutive Calendar Days after the Effective Date of the Proposal Award, and before the Contractor starts the Work at the site, he/she and all of his/her sub-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. Z 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. CCl-971.doc Page 14 ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.1 Intent: The Contract Documents comprise the entire agreemem between the City and the Contractor concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the law of the State of Colorado. 3.1.1. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with. the Contract Documents. Any Work, materials or equipment that may reasonably be inferred fi.om the Contract Documents as being required to produce the intended result will be supplied whether or not specifically .called for. When words which have a well-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or Laws or Regulations in effect at the time of opening of Proposals (or, on the Effective Date of the Contract if there were no Proposals) except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of the City, the Contractor or the Engineer, or any of their consultants, agents or employees from those set forth in the Contract Documents, nor shall it be effective to assign to the Engineer, or any of the Engineer's consultants, agents or employees, any duty or authority to supervise or direct the furnishing or performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of Article 9. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided in section 9.4. 3.1.2. If, during the performance of the Work, Contractor finds a conflict, error or discrepancy in the Contract Documents, the Contractor shall so report to the engineer and the City in writing at once and before proceeding with the Work affected thereby and shall obtain a written interpretation or clarification t?om the Engineer. 3.2 Amending and Supplementing Contract Documents: The contract Documents may be amended to provide for additions; deletions and revisions in the Work or to modify the 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 may be supplemented, and minor variations and deviations in the Work may be authorized, in one or more of the follOwing ways: 3.2.3.1. A Field Order (pursuant to paragraph 9.5); 3.2.3.2. The Engineer's approval of a Shop Drawing or sample (pursuant to paragraphs 6.18.5 and 6.18.6); or, 3.2.3.3. The Engineer's written interpretation or clarification (pursuantto 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 of the design details, drawings or specifications. CC1-971.doc Page 15 3.4 Precedence of Contract Documents: The COntract governs over the Contract Documents. A Change Order governs over all other Contract Documents impacted by change. The Special Conditions govern over the General Conditions. ARTICLE 4 - AVA/LABILITY 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, including a 24-foot wide access way through Lot 16 of the Maroon Creek Club subdivision. The Contractor shall have full responsibility with respect to any conditions or provisions contained in applicable easements relating to the lands upon which the Work is to be performed. 4.2 Physical Conditions: 4.2.1. EXPLORATIONS AND REPORTS: Reference is made to the Special Conditions for identification of those reports of explorations and tests of subsurface conditions at the site that have been utilized by the Engineer in preparation of the Contract Documents. The Contractor may reasonably rely upon the accuracy of the technical data contained in such reports, but not upon non-technical data, interpretations or opinions contained therein or for the completeness thereof for the Contractor's purposes. Except as indicated in the immediately preceding sentence and in paragraph 4.2.6. the Contractor shall have full responsibility with respect to subsurface conditions at the site. Contractor shall not, by virtue of this paragraph, be relieved fi.om 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 of physical conditions in or relating to existing surface and subsurface structures (except Undergrotmd 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 fi.om 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 fi.om that indicated, reflected or referred to in the Contract Documents, Then, the Contractor shall promptly, after becoming aware thereof and before performing any Work in connection therewith (except in an emergency as permitted by paragraph 6.22) notify the City and the Engineer in writing about the inaccuracy or difference. 4.2.4. ENGINEER'S REVIEW: The Engineer will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise the City in writing (with a copy to the Contractor) of the Engineer's findings and conclusions. 4.2.5. POSSIBLE DOCUMENT CHANGE: If the Engineer concludes that there is a material error in the Contract Documents or that because of newly discovered conditions a change in the Contract Documents is required, a Change Order will be issued as provided in Article l0 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 CCl-971.doc Page 16 any such inaccuracy or difference as described in Section 4.2.3. The Contractor shall meet and obtain approval fi.om 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 fi'om the Work, the cost of all of which wi. il be considered as having been included in the Contract Price. 4.3.2. NOT SHOWN OR INDICATED: If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and which Contractor 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 re-locations without the prior written approval of the City. The Contractor shall report to the Engineer whenever any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points by a Registered Professional Land Surveyor Licensed in the State of Colorado. 4.5 Protection and Restoration of Property and Landscape: 4.5.1. The Contractor and the City shall deliniate the extent of the construction area prior to initiation of the work. The City shall be responsible for reclamation and revegetation of the property within the delinated area. The Contractor. shall be responsible for the preservation of all public and private property outside of the delineated area_and shall protect carefully from disturbance or damage all land and property and shall protect carefully fi.om 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. 4.5.2. The Contractor shall be responsible for all damage or injury to property of any character, during the prosecution of the Work, resulting fi.om any act, omission, neglect, or misconduct in his manner or method of executing the Work, or at any time due to defective Work or materials, and said responsibility shall not be released until the project shall have been completed and accepted. 4.5.3. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct by the Contractor in the execution of the Work, or in consequence of the non-execution thereof by the Contractor, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such CC1-971.doc Page 17 damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or he shall make good such damage or injury in an acceptable manner. 4.5.4. State Highway 82 and the streets within the corporate limits of the City of Aspen are viewed by the City as a community asset which enhances the tourism industry. The City, therefore, desires to save all vegetation and other environmental features except for those which have been specifically identified for removal in the Contract DocUments. 4.5.5. Materials storage, equipment parking, vehicle parking and stockpiling excavated materials shall be allowed only in those areas designated by the Engineer. 4.5.6. Specific areas of vegetation and other environmental features to be protected shall be staked, fenced, or otherwise marked in the field by the Engineer. However, the fact that areas of vegetation and other environmental features are not marked shall not necessarily mean that those items are expendable. The Contractor shall perform all his activities in such a manner that the least environmental damage shall result. Any questionable areas or items shall be brought to the attention of the Engineer for approval prior to removal or any damage activity. Damage or destruction of unmarked trees or shrubs which could reasonably have been saved shall therefore be subject to the provisions these General Conditions. 4.5.7. If the fence, staking or marking is knocked down or destroyed by the Contractor, the Architect shall suspend the Work in whole or in part, until the fence or other protection is repaired to the Engineer's satisfaction at the Contractor's expense. Time lost due to such suspension shall not be considered a basis for adjustment of Contract Time or for compensation to the Contractor. 4.5.8. If the Contractor disturbs any of the landscape not called for removal, he/she shall restore those areas as directed at the Contractor's expense. 4.5.9. With respect to replacement of trees and shrubs that have been damaged or destroyed, the following conditions shall apply: 4.5.9.1. Trees or shrubs of replaceable size shall be replaced by the Contractor at his/her expense. If he/she fails to do so within' a reasonable length of time as determined by the Engineer and prior to the end of the contract time, the replacement value of the trees or shrubs will be deducted from any money due to the Contractor. These values shall be based upon averages derived from current prices of nurseries growing the plants, plus the cost for planting and a guarantee for the tn'st growing season. 4.5.9.2. When trees or shrubs beyond replaceable size have been damaged or destroyed, the value of such trees or shrubs shall be calculated as per square yard of surface area measured at the ground level. 4.5.9.3. Any deduction assessed as liquidated damages under this section shall not relieve the Contractor from liability for any damages or costs resulting fi'om delays to the City, traveling public or other contractors. 4.6 Hazardous Materials 4.6.1. Prior to commencement of any Work and as a condition precedent to payment by the City of any costs for it, the Contractor shall at no additional cost to the City conduct tests the Contractor deems necessary to determine the existence of Hazardous Materials by appropriately licensed Subcontractors or entities. The City shall reimburse the Contractor for the invoice costs of the tests, only in the evem 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 Acceptancein 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 fi'om 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 the Contractor or its subcontractors, the Contractor shall at the CC1-971 .doc Page 18 Contractor's sole cost and expense, cause any such Hazardous Materials to be encapsulated, treated or removed fi'om 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 mined 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 th.e site, familiarized him/herself with the local conditions under which the Work is to be performed (including weather conditions which can be expected), and correlated his observations with the requirements of the Contract Docume~nts. ARTICLE 5 - BONDS, INDEMNIFICATION AND INSURANCE 5.1 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 One Year fi'om 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 Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All Bonds signed by an agent must be accompanied by a certified copy of the authority to act. 5.1.2. If the surety on any Bond furnished by Contractor is declared a bankrupt or becomes insolvent or its right to do business is terminated in any state or it ceases to meet the requirements of paragraph 5.1, Contractor shall within five days thereafter substitute another Bond and Surety, both of which must be acceptable to the City. 5.2 Indemnification: The Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, fi'om and against all liability, claims, and demands, on account of injury, loss, or damage, 'including without limitation claims arising fi'om bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent that such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Contractor, any subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any subcontractor of the Contractor, or which arises out of any workmen% compensation claim of any employee of the Contractor or of any employee of-any subcontractor of the Contractor. The Contractor agrees to investigate, handle, respond to, and provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. The Contractor also agrees to bear all other costs and expenses related thereto, including court costs and attomey fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fi'audulent. If it is CC1-971 .doc Page 19 determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Contractor for the portion of the judgment 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. Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers'Liability insurance with minimum limitS of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. 5.3.2.2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 5.3.2.3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION 'DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Contractor has no owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Contractor providing services to the City under this contract. 5.3.3. Except for any Professional Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carded 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 Contractors 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: CC1-971 .doc Page 20 Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the abo~,e-descfibed 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 fight of recovery or subrogation against the Contractor. and issuers shall have no fight 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 fight of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered m 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. 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. 5.3.7. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 5.4 City's Liability Insurance: 5.4.1. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to 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 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. Further, nothing in the Contract Documents shall be construed or interpreted to require or provide for indemnification of the 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 Pi'oject in accordance with the requirements of the Contract Documents, shall CC1-971.doc Page 21 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 m 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 bom the City to any of these persons or entities. CC1-971 .doc Page 22 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 fmished 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. The superintendent will be the Contractor's representative at the site and shall have authority to act on behalf of the Contractor. All communications given to the superintendent shall be as binding as if giVen to the Contractor. 6.3 Labor, Materials and Equipment: 6.3.1. The Contractor shall provide competent, Suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. The Contractor shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or the work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be performed during regular working hours, and the Contractor will not permit overtime .work or the performance of Work on Saturday, Sunday or any legal holiday without the City's written consent given after prior written notice to the Engineer. 6.3.2. Unless otherwise specified in the Specific Conditions or Specific Provisions, the Contractor shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work. 6.3.3 All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract Documents. If required by the Engineer, the Contractor shall furnish satisfactory evidence (including reports of 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 responsibil;~ty contrary to the provisions of paragraph 9. I 0.1. or 9.10.2. 6.4 - 6.6 Reserved 6. Z 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 items of material and equipment will not be accepted by the Engineer fi.om anyone other than the Contractor. If the Contractor wishes to furnish or use a substitute item of material or equipment, the Contractor shall make written application to the Engineer for acceptance thereof, certifying that the proposed substitute will perform adequately the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified. The application will state that the evaluation and acceptance of the CC1-971 .doc Page 23 proposed substitute will not prejudice the 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 from 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 furnish 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. I. 6.8.3. 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 Contractors 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 Subcontractors, Suppliers and Others: 6.9.1. The Contractor shall not employ any Subcontractor, Supplier or other person or organization (including those acceptable to the City and the Engineer as indicated in paragraph 6.9.2), whether initially or as a substitute, against whom the City or the Engineermay 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 Proposal documents or the Contract Documents)'of any such Subcontractor, Supplier or other person or organization so' identified may be revoked on the basis of reasonable objection 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: 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 Subcontracting and Percentage of }Fork Awarded to Subcontractor(s): 6.10.1. The Contractor may utilize the services of specialty Subcontractors on those parts of the CC1-971.doc Page 24 Work, which under normal contracting practices, are performed by specialty Subcontractors. 6.10.2. The Contractor shall not award Work to Subcontractor(s), in excess of 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 ways. 6.11 Patent Fees and Royalties: The Contractor shall'pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. Contractor shall indemnify and hold harmless the City and the Engineer and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorney's fees and court costs) arising out of any infiSngement 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 infiSngement of such rights. 6.12 Permits: The City shall be responsible for obtaining any development permits and licenses initially required for the project. If further permits are required because of a Change Order~ the Contractor shall obtain and. pay for all construction permits and licenses. The City shall assist the Contractor, when necessary, in obtaining such permits and licenses. The Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of opening of Proposals on the Effective Date of the Contract. The Contractor shall pay all charges of utility City's for connections to the Work, and the City shall pay all charges of such utility owners for capital costs related thereto such as plant inveslrnent 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. CC1-971.doc Page 25 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 include the cost of compliance with all other Federal Laws and Regulations at no additional cost to the City (except as provided in the Contract Documents). The Contractor shall not be reimbursed separately for any taxes which may apply except as provided in the Contract Documents and the Contractor shall be responsible for all taxes which may apply. The City is tax exempt fi.om Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The City is exempt fi.om such taxes under registration numbers 98-02624. The Contractor and its Subcontractors shall apply to the Colorado Department of Revenue for a Certificate of Exemption indicating that the Contractor or Subcontractor's purchase of construction material or building materials is for use in a building, structure, or other public work owned and used by the City. 6.15 Use of Premises: 6.15.1. The 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 other land and areas permitted by Laws and Regulations, rights-of-way, permits and easements, and shall not unreasonably encumber the premises with construction equipment or other materials or equipment. The Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting fi'om 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 fi.om 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 flee fi.om accumulations of waste materials, rubbish and other debris resulting from the Work'. At the completion of the Work, the Contractor shall remove all waste materials, rubbish and debris fi.om 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 may be affected thereby; 6.17.1.2. All the Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and CC1-971.doc ....... Page 26 6.17.1.3. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, road-ways, structures, utilities and Underground Facilities not designated for removal, relocation or replacement in the course of construction. The Contractor shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the safety of persons or property or to protect them ~om 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 conf'med 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 fi'om the Contract Documents have been caused thereby. If the Engineer determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a written order will be issued to document the consequences of the changes or variations. 6.19 Shop Drawings and Samples: 6.19.1. 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 (3) copies (unless otherwise specified) of all Shop Drawings, which will bear a stamp or specific written indication that the Contractor has satisfied the Contractors 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, gpecified 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 fi'om the requirements of the Contract Documents, and, in addition, shall cause a specific notation to be made on each Shop Drawing submitted to the Engineer for review'and approval of each such variation. 6.19.5. 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 CCl-971 .doc Page 27 where a specific means, method, technique, sequence or procedure of construction is indicated in or' required by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. The Contractor shall make corrections required by the Engineer, and shall return the required number of corrected copies of Shop Drawings and submit as 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, to waive its rights on all undisputed work upon receipt of payment for that work and agrees to resolve liens filed by its subcontractors and suppliers within 30 days. The Contractor agrees to defend, indemnify, protect and save harmless the City fi.om and against any and all claims or liens and actions brought or judgments rendered, and fi.om 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 thirt~ (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 allother rights and remedies provided under this Contract or by law, to cause the liens or claims to be satisfied, removed or discharged by whatever means the City chooses, at the entire cost and expense of the Contractor, the expense to include legal fees and disbursements. The Contractor shall give a copy of Claim Release form to all Subcontractors and suppliers and shall include these provisions in all written contracts with Subcontractors, or give written notice to all Subcontractors, suppliers or other persons having oral agreements with the Contractor. 6.20.3. The Contractor agrees that moneys received for the performance of this Contract shall be used first for payment due for labor, material, and services for the Project and taxes. The Contractor shall pay Subcontractors within Ten (10) consecutive calendar days of receipt of a progress payment from the City. The Contractor shall furnish sworn affidavits in accordance with the form furnished by the City, which shall state that amounts due or to become due, amounts paid, and any other information necessary to indicate the financial condition of the Contractor, insofar as it relates to services, labor and material furnished, and to be furnished, under this Contract. The City may take steps it may deem necessary to protect itself against any claims. 6.21 Continuing the Work: The Contractor shall carry on.the Work and adhere to the progress schedule during all disputes or disagreements with the City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted herein or as the Contractor and the City may otherwise agree in writing. The Contractor may stop work 30 days after submission of a payment request_due to lack of payment fi.om the City. 6.22 Contractor Facilities: All temporary contractor facilities shall be in accordance with regulations and codes governing such construction. The types of temporary construction facilities required for the Project may include, but are not necessarily limited to, the following: (a) job site office space, (b) construction water distribution, (c) temporary closures, (d) temporary heat, (e) hoists and temporary cranes, (f) temporary roads and paving, (g) construction aids and miscellaneous facilities, (h) temporary power distribution, (i) temporary lighting, 0) temporary toilet facilities. All operations of the Contractor, including storage of materials, upon the City's premises CC1-971 .doc Page 28 shall be confined to areas authorized or approved by Owner in writing. Temporary buildings, storage sheds, shops, offices, may be erected by the Contractor only with the written approval of the City and shall be buik 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 Z I 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 the§e. 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 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 Contractor through the Engineer or his/her designated person. 8.2. The City shall furnish the data required of the City under the Contract Documents promptly and shall make payments to the Contractor through processing of the monthly Progress Pay Estimate forms within 30 days fi.om the cut-off date for a pay estimate form. 8.3. The City represents that an amount of money equal to the Contract Price has been duly appropriated in accordance with the Municipal Code of the City of Aspen, under a purchase order. The City shall not issue any Change Order or execute a Written Amendment requiring additional compensable work, which work causes the aggregate amount appropriated by the City, unless the 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: CCI-971 .doc Page 29 The Engineer shall be the City's representative during the construction period. The duties and responsibilities and the limitations of authority of the Engineer as the City's representative during construction are set forth in the Contract Documents and shall not be extended without written consent of the City and the Engineer. 9.2 Visits to Site: The Engineer shall make visits to the site at intervals appropriate to the various stages of construction to observe the progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with the Contract Documents. The Engineer shall make on-site inspections to observe the quality or quantity of the Work. The Engineer's efforts will be directed toward providing for the City a greater degree of confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on-site observations, the Engineer will keep the City informed of the progre, ss 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 bom the overall intent of the Contract Documents. If a written clarification or interpretation justifies an increase in the Contract Price or an extension of the Contract Time, the Contractor shall meet with the Engineer and resolve the issue. All such requests or claims shall be submitted to the City Engineer. 9.5 Authorized Variations in Work and Minor Contract Revisions: The City Engineer may request or authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are consistent with the overall Z~te~t 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 ofthe acceptability of the Work thereunder. Claims, disputes and other matters raised by Contractor relating to the acceptability of the Work or the CC1-971.doc Page 30 interpretation of the requirements of the Contract Documents pertaining to the performance and furnishing of the Work and claims under Articles 11 and 12 in respect to changes in the Contract Price or Contract Time shall be referred initially to the Engineer in writing with a request for a formal decision in accordance with this paragraph, which the Engineer will render in writing within a reasonable time. Written notice of each such claim, dispute and other matter by the Contractor will be delivered to the Engineer promptly (but in no event later than thirty days) 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 a~er 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 fights or remedies as the Contractor may otherwise have under the Contract Documents or by Laws or Regulations in respect of any such claim, dispute or other matter. The City shall not be bound by any initial interpretation by the Engineer of the requirements of the 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 either to exercise or not exercise such authority shall give rise to any duty or responsibility of the Engineer to the Contractor, any Subcontractor, any Supplier, or any other person or organization performing any of the Work, or to any surety for any of them. 9.10.2. Whenever in the Contract 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, i~eview 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 I0.i City Initiated Changes 10.IA. 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. t0.1.3. 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 da32s., 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 ia..the Coqtmct~ Pfi~ .a~d~or ~ the Contract T'une attfi'butab!e planned changes on the criteria and methods described jn Article 1 1. The Contractor shall be responsible for delays to the Work and any additional Costs incurred by the City caused by its failure to submit complete pricing information within the time provided above. The Contractor shall participate with the City in prompt joint analysis and negotiations to finalize a Change Order, if necessary. CCl-971 .doc Page 31 10.2 Firitten Notice of Change 10.2.1. A Written Notice of Change may be used when: 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. 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 dais 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 d~s. 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. !mowledge of the matter or circumstance, but in no event more than Ten (10) consecutive calendar dais 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. I0.6 Submittal Requirements and gFaiver 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, CC1-971,doc Page 32 including delays or differing site conditions, will not be considered by the City as a change to the Work and the Contractor waives any claim for an adjustment on the Contract Price or the 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 inf0~ati0n described in ~icie~l i. The propos&l 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. Ifa 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. ARTICLE 11. CHANGE OF CONTRACT PRICE OR CONTRACT TIME 11.1 Contract Price AdJustments. All adjustments to the Contract Price shall be determined by using one or more of the following methods: 11.1.1 A negotiated lump sum for work items that cannot be itemized. The Contractor shall promptly provide sufficient substantiating data, including calculations, measurements, cost records, production rates, equipment types and capacity, labor costs by craft and other information which the City may reasonably require the 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 quantities of work performed; 11.1.3 Cost to be determined in a manner agreed upon by the parties which includes markups that do not exceed those set forth in Section 11.4 below. 11.1.4 Costs to be determined in the manner described in Section 11.3.1. 11.2 Contract Time Adjustments. 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 de. lay 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 fi'om such causes. 11.2.3. If abnormal weather conditions are the basis for a claim for an extension of the Contract Time, such claim shall be documented on the City of Aspen Engineering Department's Daily Construction Log forms substantiating that weather conditions were unusually severe for the period of time, and could not have been reasonably anticipated. Regardless of actual weather conditions, any day in which the Contractor is able to work Six_t}, 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. I 1.2.4. The Contractor agrees that delays resulting fi'om any causes other than acts or omissions of the City, its employees, agents or officials shall be considered fully compensated by a time extension only and agrees to make no claim for monetary damages for CC1-971 .doc Page 33 such delays. In no event shall the Contractor be entitled tO recover any delay costs caused by the acts or omissions of the Contractor, its employees or agents. 11.2.5. If the Contractor believes that it has suffered delays in performing the Work that are caused by acts or omissions of the City, the Contractor may submit a Contractor Change Request with detailed justifications acceptable to the Engineer. Failure of the Contractor to comply with all requirements shall constitute a waiver of any claim for damages resulting fi.om such delays. 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 fi.om 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 fi.om 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 Cost and Pricing Data 11.4.1 Certificate of Current Cost or Pricing Data. The Contractor shall submit a Certificate of Ct~ent Cost or Pri'cing 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 wdting to the City in support of * are accurate, complete, and current as of ** and represent the best prices available from suppliers and subcontractors. This certification includes the cost of pricing data supporting any advance agreements and forward pricing rate agreements between the offer or and the City that are part of the proposal. Firm Name Title Date * Identify the appropriate number of the Change Notice. ** Date when pricing negotiations were concluded and price agreement was reached. *** Date of signing, which should be as close as practicable to the date when the price negotiations were concluded and pdce agreement reached. CC1-971 .doc Page 34 11.4.2 Vendor Statements. The Contractor shall submit in support of all items which are not unit prices or lump sum prices established by the Contract, statements by the affected vendors that the prices are not in excess of those previously charged to the City or the supplier's regular commercial customers for the same items. 11.4.3 Price Reductions for Defective'Costs or Pricing Data. If it is later determined that pricing adjustments to the Contract were not correct due to incomplete or inaccurate pricing data by the Contractor or any subcontractor or supplier or that lower prices were readily available, the price shall be reduced accordingly and the Contract modified by a Change Order. ARTICLE 12 - Reserved ARTICLE 13 - WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.1 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 fi.ce fi.om faulty materials and workmanship for a period of not less than One Year fi.om 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: 13.1.3.1. Obtain all warranties that would be given in normal commercial practice. To the extent that the Subcontractor's, manufacturer's, or Supplier's, standard warranty exceeds the minimum City requirements as set forth in this Article or elsewhere in the Contract Documents, the Subcontractor's, manufacturer's, or Supplier's standard warranty shall apply. Otherwise, the Contractor shall be responsible for a Two Year term under the Maintenance Bond. 13.1.3.2. Require all warranties to be executed, in writing, for the benefit of the City, if directed by the Engineer or. 13.1.3.3. Enforce all warranties for the benefit of the City, if directed by the Engineer. 13.1.3.4. Assign all warranties and guarantees in writing to the City upon the request of the City. 13.1.4. Notwithstanding anything to the contrary above, the Contractor shall warrant that all equipment which are incorporated into the Work or any subsystem shall be new, free fi.om liens and defects in design, have clear title, be flee fi.om faulty materials and workmanship, and shall conform in all aspects to the terms of the Contract Documents, to the drawings issued for manufacture by the Contractor, and shall be in conformance with the Technical Specifications and Contractors Proposal (except in those instances where the Contractor's Proposal has been amended by subsequent Technical Specifications). Unless the warranty period is otherwise extended or modified, the following warranty shall apply. If within Five (5) Years from the date each piece of equipment incorporated into the Work or any subsystem is accepted by the City, it appears that the equipment or any part thereof does not conform to the above warranty and guarantee provisions, and the City so notifies the Contractor within a reasonable time 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. CC 1-971 .doc Page 35 13.1.4.1. The preservation, packaging, packing, and marking, and the preparation for, and method of, shipment of such equipmem shall conform with the requirements &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 home 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 Contract Documents and the warranty provided by a Subcontractor, manufacturer or Supplier, the terms and conditions &the warranty that affords the City the greatest protection shall be binding upon the Contractor. 13.1.7. The above warranties or other warranties agreed to by Contractor shall not limit the City's rights under other provisions of this Article with respect to latent defects, gross mistakes, or fraud. 13.1.8. Neither the foregoing nor any provision in the Contract Documents, nor any special guarantee time limit, shall be held to limit the 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 mn fi'om the date of delivery of the corrected or replaced supply, or upon the date it is placed in service, whichever is later. 13.2 Access to 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 Contractor shall cooperate with material testing persons and firms, and for required inspections, and compliance and approval tests for the Work performed by the Contractor or his/her 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 be responsible for and shall pay all costs in connection with any inspection or Re-testing required in connection with the City's or the Engineer's acceptance of a Supplier of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to The 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 finns 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. CC1-971 .doc Page 36 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. 13.5 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 falls to furnish or perform the WOrk in such a way that the completed Work will conform to the Contract Documents, the City may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of.the City to stop the Work shall not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other party. 13. 6 Correction or Removal of Defective Work: If required by the Engineer or the City, the Contractor shall promptly, as directed, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by the Engineer or the City, remove it from the site and replace it with non-defective Work. The Contractor shall bear all direct, indirect and consequential costs of such correction or removal (including but not limited to fees and charges of engineers, architects, attorneys and other professionals) made necessary thereby. 13. 7 Correction Period: If within One Year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of the Contract Documents, any Work is found to be Defective, the Contractor shall promptly without cost to City and in accordance with City's written 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 days 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 CCl-971.doc Page 37 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 fights 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 exemise by the City of the City's rights and remedies hereunder. 13.10 Unauthorized Work: Work performed beyond the lines and grades on the Drawings or approved Design Documents, Construction Documents or Shop Drawings and extra work done without written authorization, will be considered as unauthorized work, and the Contractor will receive no compensation therefore. If required by the City, unauthorized work will be remedied, removed, or replaced by the Contractor at the Contractor's expense. ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.1 Determination of Work Value: The Work quantities recorded on the City of Aspen Engineering Department's Daily Construction Log forms shall serve as the basis for preparation and 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 fi'om 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 fellowing: 14.2.1.1 STANDARD RETAINMENT: The City shall make a deduction from the progress estimate in the amount considered necessary to protect the interests of the City, pursuant to Section 24-91-103, CRS. That amount to be retained shall be as follows: (a) for contract price of less than $50,000 the retained amount shall be 10% of the value of the completed work; (b) for contract price between $50,000 to $1,000,000.00 the retained amount shall be 7% of the value of the completed work; and, (c) for contract price over $1,000,000.00 the retained amount shall be 5% of the value of the completed work. No further retainment shall be withheld if the Contractor makes satisfactory progress in the Contract Work. The amount retained shall be in effect until such time as final payment is made, with the following exceptions: a) When one hundred Percent (100%) of the Work has been complete, the Engineer may, at his/her discretion, reduce the retained amount by fill3, percent (50%) of the required retainage. h) Upon one hundred percent (100%) completion and acceptance of the project, the Engineer may reduce the retainment to fifty percent of the required retainage. In addition to standard retainment, the City shall withhold funds for claims against the Contractor filed by Subcontractors and Suppliers, pursuant to Section 38-26-107, CRS. 14.2.2. NO PAYMENT. A progress payment shall not be made when the total value of the work done since the last estimate amounts is less than $500.00. CC1-971 .doc Page 38 14.2.3. LUMP SUM ITEMS. All lump sum Bid items shall be paid on a pro-rata basis determined by the percentage of the total Work completed or if the Bid item is installed or completed One Hundred Percent (100%) in place and accepted by the Engineer. 14.2.4. SUBCONTRACTOR PAYMENTS. In addition to the other requirements regarding subcontracting the Work, the Contractor is responsible for prompt payments to all Subcontractors. As a minimum, the Contractor is responsible for prompt payments to all 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; The Contractor shall make payments to Subcontractors within 10 days of receipt of the City's payment to the Contractor; Subcontractors and lower tier subcontractors shall make payments to their subcontractors, according to the requirements above and shall make payments within 10 days of receipt of payment fi.om the next higher tier. 14.3 Contractor's Warranty of Title: The Contractor warrants and guarantees that title to all Work, materials and equipment covered by any progress pay estimate approved for Payment, whether incorporated in the Project or not, will pass to the City no later than the time of payment free and clear of all Liens. 14.4 Engineer's Review of Progress 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 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 pa.wnent 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 fi.om loss because: 14.4.2.1. The Work is Defective, or completed Work has been damaged requiring correction or replacement; 14.4.2.2. The Contract Price has been reduced by Written Amendment or Change Order; 14.4.2.3. The City has been required to correct Defective Work or complete Work in accordance with paragraph 13.9.; or, 14.4.2.4. Of the Engineer's actual knowledge of the occurrence of any of the events enumerated in Article 15. CCl-971.doc .... Page 39 The City may refuse to make paymem 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. 14.5 Substantial Completion: 14.5.1. The date accepted by the City when the construction of all Work items in the project or a specified part thereof is One hundred percent (100%) completed, in accordance with the Contract Documents, so that the project or specified part can be utilized for the purpose for which it is intended shall establish substantial completion for the project or for a specified part. 14.5.2. When the Contractor considers the entire Work ready for its intended use, the Contractor shall coordinate with the City an inspection of the Work and conduct such tests as required to ensure the Work meets or exceeds all Performance Standards to help determine the status of completion. If the City does not consider the Work satisfactorily complete, the Engineer shall notify the Contractor in writing giving the reasons therefore. There shall be a Punch List of the items to be completed before fmal 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 Final Inspections: Upon written notice from the Contractor that the entire Work or an agreed portion thereof is complete, the City will make a final inspection with the Engineer and the Contractor and will notify the Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or 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 CC1-971 .doc Page 40 Contractor or his subcontractor(s), that they may file a claim with the City, at any time up to and including the time of f'mal settlement. Upon filing of any such claim, the City shall withhold from retainment withheld in accordance with the Contract Documents, to insure the payment of said claims until the same have been paid or such claims as filed have been withdrawn, such payment or withdrawal to be evidenced by filing with City a receipt in full or an order for withdrawal in writing and signed by the person filing such claim or his duly authorized agents or assigns. Such funds shall not be withheld longer than Ninety D~_s 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 exp.[ration 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 remaining balance to be held by the City f6r 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 Contractor's Continuing Obligation: The Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. Neither recommendation of any progress or final payment by the Engineer, nor the issuance of a certificate of Substantial Completion, nor any payment by the City to the Contractor under the Contract Documents, nor any act of acceptance by the City nor any failure to do so, nor any review and approval of a Shop Drawing or sample submission, nor the issuance of a notice of acceptability by the Engineer pursuant to paragraph 14.9, nor any correction of Defective Work by the City will constitute an acceptance of Work not in accordance with the Contract Documents or a release of the Contractoffs obligation to perform the Work in accordance with the Contract Documents. 14.11 Liquidated Datnages: 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 andC0ntmct Documents nor is it intended, but as Liquidated Damages to compensate the City for all costs incurred as a result of such breach of Contract. 14.11.4. DELAYS IN WORK COMPLETION OF CONSTRUCTION PHASE: Subject to the terms of "Excusable Delays", as contained in Section 14.11.6. of the General Conditions, the Contractor expressly agrees to pay the City as a reasonable estimate of just compensation for damages contemplated with the clause, the amount set forth in the Liquidated Damages Form for each consecutive calendar day that Substantial Completion is delayed in the Construction of the project. In no event shall the total amount of liquidated damages exceed Twenty Percent (20%) of the total Contract Price for the Construction. 14.11.5. DELAYS IN SUBMITTAL OF AS-BUILT DOCUMENTATION: Should the Contractor fail to make delivery of the as- built documentation covered in the Contract Documents prior to release of the final payment, it shall pay liquidated damages to the City the amounts equal to preparation cost of the As-Built drawings by the City and its Engineers and Surveyors. CC1-971 .doc ' Page 41 14.11.6. EXCUSABLE DELAYS - FORCE MAJEURE: If, by reason of Force Majeure, any party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement then such party shall give notice and full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the liability then claimed, but for no longer period, and any such party shall remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the United States or the State of Colorado or any political subdivision, except the City, or any civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquakes, 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 15.1 City May Suspend Work: The City may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than ninety days by notice in writing to the Contractor and will fix the date on which work will be resumed. The Contractor shall resume the Work on the date so fixed. The Contractor' shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both if the Consecutive Calendar Days are used to complete the Work, directly attributable to any suspension if the Contractor makes an approved claim therefor as provided in Article 11. Other Work suspensions such as delayed start or phased construction shall not entitle the Contractor to any compensation of payment or time. 15.2 City May Terminate: Upon the occurrence of any one or more o. fthe 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. Ifa 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 ~ed 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 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 Contractor admits in writing an inability to pay its debts generally as they become due; 15.2.6. If the Contractor persistently fails to perform the Work in accordance with the Contract Documents (including but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule established under paragraph 2.9 as revised from time to time); 15.2.7. If the Contractor disregards Laws or Regulations of any public body having jurisdiction; CC 1-971 .doc Page 42 15.2.8. If the Contractor disregards the authority of Architect; or, 15.2.9. If the Contractor otherwise violates in any substantial way any provisions 0fthe Contract Documents: The City may, after giving the Contractor (and the surety, if there be one) seven days written notice and to the extent permitted by Laws and Regulations, terminate the services of Contractor, exclude the Contractor fi.om the site and take possession of the Work and of all the Contractor's tools, appliances, construction equipment and machinery at the site and use the same to the full extent they could be used by the Contractor (without liability to the Contractor for trespass or conversion), incorporate in the Work all materials and .equipment stored at the site or for which the City has paid the Contractor but which are stored elsewhere, and finish the Work as the City may deem expedient. In such case the Contractor shall not be egti~l~d 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 fi.om liability. 15.2.11. Upon seven days' written notice to the Contractor, the City may, without cause and without prejudice to any other right or remedy, elect to abandon the Work and terminate the Contract. In such case, the Contractor shall be paid for all Work executed and any expense sustained plus reasonable termination expenses. 15.3 Contractor May Stop Work or Terminate: If, through no act or fault of the Contractor, the Work is suspended for a period of more than ninety days by the .City or under an order of court or other Public authority, then the Contractor may, upon seven days written notice to the City and the Engineer, terminate the Contract and recover 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: 16.1.1. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take alTmmative action tO insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handi- capped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices m be provided setting forth the provisions of this nondiscr- imination clause. 16.1.2. The Contractor, with regard to the Work performed by it during the Contract, shall not discriminate on the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran in the selection and ret~ention of S,ubcontractors, including procurements of materials and leases of equipment. CCl-971.doc ....... Page 43 16.1.3. The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. 16.1.4. In all solicitations either by competitive Request for Proposals or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential Subcontractor or Supplier shall be notified by the Contractor of the subcontractor's obligations under this Contract and the regulations relative to nondiscrimination on the grounds of race, color, religion, sex, national origin, sexual orientation, age, marital status, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. 16.1.5. The Contractor will send to each labor union or representative of workers, with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. I6.2 Giving Notice: Whenever any provision of the Contract Documems requires the giving of written notice, it will be deemed to have been validly given if delivered in person to the individual or to a member, of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 16.3 Computation of Time: 16.3.1. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 16.3.2. A consecutive calendar day of twenty-four hours measured fi.om midnight to the next midnight shall constitute a day. A working day is any day; Monday through Friday of each week, also called business day. 16.4 General: Should the City or the Contractor suffer injury or damage to person or property because of any error, omission or act of the other party or of any of the' other party's employees or agents or others for whose acts the other party is legally liable, claim will be made in writing to the other party within a reasonable time of the first observance of such injury or damage. The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose. 16.4.1. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon the Contractor by the General Conditions, and all of the rights and remedies available to the City thereunder, are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. All representations, warranties and guarantees made in the Contract Documents will survive final payment and termination or completion of the Agreement. 16. 5 Independent Contractor Status: It is expressly acknowledged and understood by the parties that nothing in this agreement shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant Of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract. CC1-971 .doc Page 44 THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY .FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 16.6 Prohibited 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 lnterest: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established 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. 16.8 Payments Subject to Annual Appropriations: If the contract awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the City beyond any 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 recluests, 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. I0 Successors and Assigns This Contract and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Contractor respectively and their agents, representatives, employees, successors, assigns and legal representatives. Neither the City nor the Contractor shall have the right to assign, wansfer or sublet his or her interest or obligations hereunder without the written consent of the other party. CC1-971 .doc .......................... Page 45 1611 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 party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein conta'med, to be performed, kept and observed by the other party. 16.13 Contract Made in Colorado The Parties agree that this Contract was made in accordance with the laws of the State of Colorado and shall be so construed.. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 16.14 Attorney's Fees In t/ne event that legal action is necessary to enforce any of the provisions of this Contract, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 16.15 Waiver of Presumption This Contract was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Contract. 16.16 Severability Clause: If any provision of the Contract is subsequently declared by legislative or judicial authority to be unlawful, unenforceable, or not in accordance with applicable laws, statutes, and regulations of the United States of America or the State of Colorado, all other provisions of the Contract shall remain in full force and effect. 16.17 Audit 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 (3) 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. 1618 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 fight 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 ease of pricing any modification, the authorized representatives of the U.S. Department of Transportation, and the State of Colorado shall have the same fights. CC1-971.doc Page 46 16.18.2. AVAILABILITY: The Contractor shall make available at its offices at all reasonable times the materia!s described in the Contract Documents, for examination, audit, or reproduction, until three (3) years after fmal 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 ofth~s Contract shall be made avadable until disposition of such appeals, litigation, or claims. Rev. 1/19/01 (Secs. 14.2.1.1 & 13.1.1) gcl-971 CC1-971.doc Page 47 Scope of Work / Technical Specifications Rio Grande Parking Garage West Stairs Replacement Project No. 2003-841 The selected Contractor's work shall include, but is not limited to the following: BTE Concrete (Contractor) shall replace the west stairs of the Rio Grande Parking Garage. The existing U-shaped stairs will be replaced by a new L-shaped design. Please see attached a copy of the L-shaped replacement. This project is design build so the Contractor is not able to provide approved plans with the Contract. The Contractor shall hire an engineer to design and stamp the project. The City shall have an opportunity to approve or reject the plans the contractor submits. The Contractor anticipates the stairs will consist of two stair beams made from a bent steel plate or channel. The skid resistant treads will be bolted to the stair beams and will be galvanized steel. The treads shall have openings to allow snow and water to pass through the tread. There will not be a riser. The stair beams will be attached to an existing concrete retaining wall at the upper end, new concrete walls and the landing and the existing sidewalk at the bottom. The contractor anticipates that stainless steel wedge anchors will be used to attach the stair beams to existing concrete. A new drain shall be installed near the bottom of the stairs to catch the water that currently accumulates in that area. The as-built drawings indicate that an 8" storm drain lines runs through that area. The ContraCtor will attempt to locate that existing line and fie the new drain into that existing storm drain line. If the Contractor finds that the storm drain does not fall within our right-of-way, the new drain will tie into an existing storm drain line in the existing parking garage. This would involve coring a 4" hole through the wall of the parking garage and securing the new drain to the wall on the inside of the garage. The new design will expose more of the brick wall through the upper portion of the stairs. It is possible to see that the bricks do continue below the existing stairs since the existing stairs have pulled away from the wall, but the Contractor will not know how far down the bricks continue until the stairs are demolished and removed. Bricks at new construction may differ in color as the old bricks have weathered over time. The Contractor shall work within the agreed contract amount of $95,472.00 and replace the brick with a similar make and color. The City had hoped to have access under the entire stairway. No access currently exists. A retaining wall will be required along the south side of the upper stairs in order to provide access under the upper stair section. The retaining wall will require a temporary excavation support. Due to cost considerations the Contractor was told by the City not to include the cost of the retaining wall, but to provide for 12" of clearance below the bottom of the stairs and' provide a concrete slab on grade below the stairs to prevent erosion. Access shall be provided for under the lower section of stairs. This is the proposal the City accepted. The Contractor shall consider three options to reduce snow removal maintenance expected on the upper stair portion. One option is to include the south retaining wall. A second option is to place an electric snowmelt system on the slab on grade below the upper section of stairs. The third option is to place a removable canopy or roof over the upper section of stairs: The Contractor has agreed to provide pricing on these three options for the Cities evaluation. The Contractor shall have 12 weeks after Notice to Proceed to complete the stair replacement with the understanding the City would like,to have the Project completed by Monday, June 14, 2004, in time for the Food and Wine Festival. The Contractor shall be allowed to use three to five parking spaces in the adjacent parking lot for Construction staging and parking at no cost. The Contractor andhis employees may use the restroom in the Rio Grande Parking Garage facility or the adjacent City office building during construction in lieu of a portable toilet on site. P.O. Box 1944 · Glenwood Springs, CO 81602 · 970-945-2431 ° Colorado Wats 1-800~332-4920 .,Fax 970-945~8245 Contractor's Qualifications and Capacity We have attached resumes for Terry Ostrom and Tommy Junge. Terry will be the Project Manager and Tommy will be the General Superintendent with responsibility for this project and Cemetery Lane. BTE Concrete Formwork currently has $2.6 million of contract backlog, primarily in four contracts. Our 2003 contracting volume will be aroUnd $4.0 million. We expect our 2004 cohtracting volume to be around $5.0 million, our average has been $6.0 over the past four years. BTE will self perform most' of the work on this project. The design work will be performed by SGM of Glenwood Springs. Innovative Iron will fabricate the stairs and Smith Management Inc. will perform the masonry work. Both firms inform us that they have the capacity to manage this project in accordance with the construction schedule. Relevant Experience BTE performs excavation and demolition in-house on our smaller con~acts. Examples of similar demolition and excavation include the Elk Creek Bridge for the City of New Castle. On this project we demolished retaining walls, performed all the bridge excavation and backfill and installed new sewer line. On the Mamm Creek Siphon we demolished an existing siphon and headwalls, and performed all the dirt and concrete work to replace the siphon and overflow piping work. The concrete work on this project is similar to the kind of work we have performed regularly for the past 28 years. Project Cost Proposal In accordance with your request for proposal, we have submitted a schedule of values, which will ultimately be used for billing purposes. The quantifies are only estimates, since the design has not been completed. It is our expectation that the final contract would be a lump sum type of contract, and the quantities and unit prices would only be used as a means of preparing progress billings. We have not included a bid bond, but we will provide the required 50% payment and performance bond if we are awarded this contract. Clarifications/Assumptions The upper portion of the stairs has pulled away from the brick wall. It appears that the brick continues below the stairs, we assume to the footing. The new design will expose more of the wall and brick. We do not include the cost of installing new brick - if the brick does not run all the way to the footing - nor do we include replacing the brick that may be a different color, since it has not been exposed to the elements. We do not include the "access panel or hatch to facilitate cleaning" but our proposed design wilt allow access under the northern stair. The southern stair will use the same alignment as the existing, and will not provide for people access. We have not provided the requested specifications for paint and caulk. Per verbal direction we received from the City, we have included the cost of weathering steel with non-rusting stair treads. These products will not be painted. Our anticipated design will not require caulking products. If SGM determines that caulking is required, we will provide technical data for your consideration with our submission of the proposed design. We will endeavor to match the color scheme on the brick, but the stairs will be weathering steel and will not match the adjacent painted bridge. We request permission to immediately chisel a few bricks offthe west wall so we can send them to the brick manufacturer.. If we are unable to closely match the existing brick with new brick we will attempt to salvage the existing brick for reuse. If it becomes unpractical to salvage the existing brick, there may be a slight color difference between the new and existing brick. We will provide samples of new brick for the Cities approval. We do not include the cost of permits, and assume the City would provide these at no cost as'they did at Maroon Creek and Cemetery Lane. We understand that we must apply for and obtain the required permits. We do' not include the cogt of parking permits or fees and assume the City would allow us the use of parking spaces in the adjacent parking lot for construction staging and parking. We assume the City would object to having a portable toilet on the site. Therefore, we anticipate the City would allow our employees to use a restroom in the parking facility or their adjacent office building. BTE and the City negotiated some changes to your general contract on the Maroon Creek Pedestrian Bridge. Contract and Cemetery Lane 2-2 Contract. We anticipate that similar changes would also be acceptable if we are selected as the General Contractor. We appreciate the oppommity to propose on this project. Respectfully Terry Ostrom General Manager Attachment RO. Box 1944 · G enw00d Springs CO 81602 ~97d:9~5:22131 December 19, 2003 City of Aspen Purchasing Office 130 South Gal~na.S~reet. Aspen, CO gI 6!! ........ ....... i ...~' ' Attn. Rebecca Hodgson Re. Rio Grande Parking Garage we§t Stair Replacement Dear- Mrs. Hodgson, ' BTE Concrete FomWOrk LLC is pleased to sub~t the fo!!oMng pi~0posa[ we understand thehature and requirements 0i-the propOsed projeCt ~d believe We are uniquely suited to satisfy the desired results of the City of Aspen. Our business phone and address is listed on our Ietferhead. T e~"o~tr6m~W~S~p~adi~ responsible for preparing our bid and proposal. Should any information be required, beyond that inclUded in our proposal please do not hesitate to call. Respectfully Terry Ostrom General Manager B, ,ACKGROUND SYNOPSIS Tommy Junge has 28 years of construction experience. After graduating ~from high school, in July 1975 Tommy began w6rking a~alab6r foi~ FlatirOn Structures Company. Tommy had progressive'poslti0ns aS labor, car~nter, carp~hter foreman and superintendent. The majority of Tommy's construction experience has b~en heavY ~highwa~y'~ith an' emphasis on bridge construction. As a superintendent, Tommy ha~managed the field ConstruCtion On several large bridge projects, sUCh asG~ly Creek East Bound in the Gienwood CanyOii~ The Walnut street vi~d~i~'i6D~er-aii'dHan~ng Lake Viaduct in the GlenWood Canyon. Since joining BTE concrete Formwork LLC inthe'summer of 1998T6mmy-is"no longer in charge of a buthema6~ges the field 6p~a/~0~ns~'~f6/:'tdl~f BTE's oPerations on ,,EMPLOYME HISTORY July 1975- May 1996 May 1996- JUne 1998 June 1998- Present superintendent General SUperintendent BACKGROUND, SYNOPSIS Terry Ostrom has 19 years of experience in the heavy highway, commercial construction industry. Terry began working Wi~Fl~r~6~(~es Company in 1984 as a labor on the Glenwood Canyon, ColOrado project. TerrY continued working for Flatiron Structures as a carpenter and carpenter ~f0reman while art.ending the Industrial Constructio..n Managemen~ program at Colorado State University (CSU). After his gradUation from CSU ~1987, Te~ assumed the responsibilities of Project Engineer for FlatironstruCtures Company on their going Glenwood Canyon Project. As an engineer, Terry was responsible for'CoSt Flatiron Structures Company. As a Proj was expanded to include project safety, quality control, estimating, owner relations and managing project supervisory personnel. In 1991 Terry..w. as transferred to.an affiliate company, F~I ConStructors, which performed similar types of wOrk in the S0Utiieru C~iifornia h~'highWnY mnrket. Terry spent six years in'southeru' calif0r~ia~ ~sfim'a-~g and~na~naglhg four separate .projects, with combined contract values exceeding $100,000,000. Terry also obtained a masters degree in business administration While worlfihg fulltime in Southern CaHforula. In April of 1997 Terry returned to ColoradOto j ntne management team of BTE Concrete Formwork, LLC. Terry is nOw responsible for'overall management of aH of BTE'S operations.' Terry personKHy'es~m~at~sand maha~es- m~6y'of-~TE,'s~ Western Slope Projects and ~Terry reviews estimates fOr all Of BTE'Sproposals.' '" REPRESENTATIVE PRO. CT MANAGEMENT EXPERIENCE Interstate Hiehway 70, Glenw~d Canyon,ColOrado. A $3,500,.0.00 project, for the Co?rad0Department-o'f'TranSPortation consisting of deep H-pile foundation, excava~0~'' supports, 'eoffer~dk-m~ ~'true~ure exenvation and rip rap. Interstate Hiehway 70~ Glenw00d C#nyon~ C .o..l°rad0~ ..... A $11,000,000 project for the ColOrado Department of Transportation consisting of major bridge, bike path bridge~' one-tulle'Of preeas~ retaining' ~aii,-reinf0r~ed each wall, roadway excavation, and import borrow. ' Interstate Highway 5 at Grand Avenue, San~, Anai c .~.'~ornia. A $25,000,000 Caltra.ns project, which included .t~vo bridges, five retaining Walls, roadway excavation, import borrow, asPhalt paving and ~other concrete, related worl~ Interstate Hiehwa..¥ .$ at' 17th. S.treet~,santa ~a. iCa. lifo~ia. A $36,000,00.0 Caltrans Project, Which included Six b~dges~ three retaining walls, concrete paving, excavation suPports and~a pump station. · rab . o Canyon Overcrossmt~, M~ssl0n Vmlo~.Calff°rma~ A $12,000,000 project for the TransportatiOn Corridor Agency which included the construction Of twin bridges spanning 1,400 feet over' Trabueo Canyon and over 700,000 CY of roadway excavation. Since joining BTE in 1997, Terry is no longer invoiVed'in' the da~b ~d~ ~b~h'fi6h~~ of individual projects. Instead he estimates and oversees all~0fBTE"~busin~ operations. EDUCATION Colorad° state University B.S. Construction Management Nail 1 '~" .... "~ ~' ona vmve.rslty, ~an ~l.ego, ~A Masters of Business AdministratiOn BID PROPOSAL FORM Project No. 2003-841 BID DATE: PROJECT: PROPOSAL SUBMITTED BY: September 2003 Rio Grande Parking Garage West Stairs Replacement BTE Concrete c/o Terry Ostrom CONTRACTOR'S PROPOSAL TO: The Governing Body of the City of Aspen, Colorado The undersigned responsible bidder declares and stipulates that this proposal is made in good faith, without collusion or connection with any other person or persons bidding for the same work, and that it is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and request for bid, all the requirements of the bid documents including the plans and specifications for this bid, all of which have been read and examined prior to signature. The bidder agrees to keep this bid open for Sixty (60) consecutive calendar dal2s from the date of bid opening. The Contractor agrees that construction shall start immediately following a mandatory pre-construction conference held by the Engineering Department, which also constitutes the Notice to Proceed. Submission of this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish construction within the time specified in the Special Conditions of this contract document. The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the City, to waive any informalities or to reject any orall bids. The City hall not pay the contractor for defective work and/or for repairs or additional work required for successful completion of the project. All work not specifically set forth as a pay item in the bid form shall be considered a subsidiary obligation of the contractor and all costs in connection therewith shall be included in the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the proper and success completion of the work, including furnishing all materials, equipment and tools, and performing all labor and supervision to fully complete the work to the City's satisfaction. Poor quality and workmanship shall not be paid for by the City. Such work product must be removed immediately and replaced properly at no cost to the Citv. All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for estimating the probable cost of work and for the purpose of comparing the bids submitted to the City. The basis of payment shall be the actual amount of materials furnished and work done. The Contractor agrees to make no claims for damages, anticipated profit, or otherwise on account of any differences between the amount of work actually performed and materials actually furnished and the estimated amount of work. BP1-971.doc *BP1 .~,,~(./~ge 1 Contractor's Initials BID PROPOSAL FORM Project No. 2003-841 BID DATE: PROJECT: PROPOSAL SUBMITTED BY: September 2003 Rio Grande Parking Garage West Stairs Replacement BTE Concrete c/o Terry Ostrom CONTRACTOR'S PROPOSAL TO: The Governing Body of the City of Aspen, Colorado The undersigned responsible bidder declares and stipulates that this proposal is made in good faith, without collusion or connection with any other person or persons bidding for the same work, and that it is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and request for bid, all the requirements' of the bid documents including the plans and specifications for this bid, all of which have been read and examined prior to signature. The bidder agrees to keep this bid open for Sixty (60) consecutive calendar daFs from the date of bid opening. The Contractor agrees that construction shall start immediately following a mandatory pre-construction conference held by the Engineering Department, which also constitutes the Notice to Proceed. Submission of this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish construction within the time specified in the Special Conditions of this contract document. The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the City, to waive any informalities or to reject any or all bids. The City hall not pay the Contractor for defective work and/or for repairs or additional work required for successful completion of the project. All work not specifically set forth as a pay item in the bid form shall be considered a subsidiary obligation of the Contractor and all costs in connection therewith shall be included in the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the proper and success completion of the work, including furnishing all materials, equipment and tools, and performing all labor and supervision to fully complete the work to the City's satisfaction. Poor quality and workmanship shall not be paid for by the City. Such work product must be removed immediately and replaced properly at no cost to the City. All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for estimating the probable cost of work and for the purpose of comparing the bids submitted to the City. The basis of payment shall be the actual amount of materials furnished and work done. The Contractor agrees to make no claims for damages, anticipated profit, or otherwise on account of any differences between the amount of work actually performed and materials actually furnished and the estimated amount of work. BP1-971 .doc '~BP1 ~ag~e 1 Contractor's Initials The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid unit price and up to plus or minus Twenty Five (25) Percent of the total bid. I hereby acknowledge receipt of ADDENDUM(s) numbered through '~ ES TIMA TED QUANTITY LIS T_ BID ITEM DESCRIPTION Mobilization & Demobilization Engineering & Plans Demo Existing Wall Demo Existing Stairs Demo Sidewalk Structural Excavation Structural Bckfill Tie-In at Storm Sewer Masonry (Brick) Structural Steel (Stairs) (Fab.) Structural Steel (Stairs) (Erect) Structural Concrete (Class D) Concrete (Slope Pave) (Color) Concrete (Sidewalk) (Colored) Construction UNIT TOTAL UNIT QUANTITY PRICE COST LS 1 $9,112.00 $9,112.00 LS 1 $7,000.00 $7,000.00 CY 10 $1,000.00 $10,000.00 CY 6 $1,000.00 $6,000.00 Y 11 $500.00 $5,500.00 CY 20 $100.00 $2,000.00 CY 16 $90.00 $1,440.00 EA 1 $500.00 $500.00 SF 460 $17.00 $7,820.00 LS 1 $20,000.00 $20,000.00 LS 1 $3,000.00 $3,000.00 CY 18 $600.00 $10,800.00 CY 4 $700.00 $2,800.00 CY 17 $500.00 $8,500.00 LS 1 $1,000.00 $1,000.00 TOTAL BID IN NUMBERS: 95,472.00 Total Bid in Words: Ninety Five Thousand Four Hundred Seventy Two Dollars BP1-971 .doc *BP1 Page 2 Contractor's Initials I acknowledge that in submitting this bid it is understood that the right to reject any and all bids has been reserved by the owner. Authorized Officer: Terry Ostrom J:itle: Gen_.eral Manager Full name signature: Company address: P.O. Box 1944, Glenwood Springs, CO 81602 Telephone number: 970-945-2431 Fax number: 970-945-8245 Attested by:' .//~',-'/ kro/ a bu Subcontractor & Material Supplier List Name: Phone #: Address: Smith Management Inc. 970-876-5892 Silt, Colorado Service or Product: Masonry Name: Innovative Iron Phone #: 970-876-0750 Address: Silt, Colorado Service or Product: Fabricate Stairs BP1-971.doc *BP1 - Pa~g,e 3 Contractor's Initials LIQUIDATED DAMAGES for FAILURE TO COMPLETE THE WORK ON TIME The undersigned contractor declares his/her full awareness of the content and terms of this contract and affirms that the contractual time is the period mentioned in the contract Specifications plus the time extension(s), if any, granted by the City of Aspen for successful completion of project. The undersigned contractor further acknowledges he/she understands and agrees to liquidated damages to be deducted from moneys due to him/her for any delayed calendar day beyond the total time at the rate of $250. OOper day. This amount and the total allowed time by the City shall not be negotiable under any conditions. Attest: Corporate Seal STATE OF COLORADO ) ) SS. COUNTY ) Before me ~ C' r9 ~ ~- C~!q c ~' l< , a notary public and for c-. ~-.~ri-~ County, Colorado personally appeared t ~ C' c' ~ C) 5 'ecc~aq me personally to be the person(s) whose signatUre(s) in my presence this known to day of , A.D. A:9~ LIi-971,do¢. My commission expires: (Seal) *LD1 Notary Public NOTICE OF AWARD Check only one category: ~Hand delivered today C Faxed RE: Rio Grande Parking Garage West Stair Replacement Date: 1/7/04 PROJECT No. 2003-041 Dear Mr. Ostrom, This notice of award is issued to inform you that following the opening of bids on 12/19/03, for the above referenced project, all bids were evaluated in accordance with the criteria set forth in the Invitation to Bid and a determination was made that your bid was the lowest responsible and responsive bid. Accordingly, the City of Aspen hereby accepts your bid to perform the work outlined in the bid documents for an amount not to exceed Dollars ($95,472.00), subject to approval by the City Council of the City of Aspen. This contract will be presented to the City Council for approval at their next regular meeting. Your attendance is not necessary although you are most welcome to attend. In accordance with the provisions set forth in the Contract Documents, you must comply with the following conditions precedent within seven (7) consecutive calendar days of the hand delivery or fax transmission of this notice: 2. 3: You must deliver with executed Contract Documents all "**" designated pages as shown in the table of contents. You must deliver Performance, Payment, and Maintenance bonds on the City forms. You must deliver proof of insurance coverage, with the City of Aspen named as co-insured, as specified in the Bid Package, proof of Workman's Compensation coverage, and a copy of your City of Aspen Business License. Failure to comply with these conditions within the specified time will entitle the City of Aspen to consider your bid abandoned, to annul this Notice of Award, and to declare your Bid Security forfeited. Within seven (7) days after you comply with these conditions or following the City Council approval, whichever occurs last, the City of Aspen will return to you one fully signed counterpart of the contract, together with a "Notice To Proceed". Thank you for your bid and congratulations on being the successful bidder for this project. Sincerely, CITY OF ASPEN NA1-971 .doc NA'I CONTRACT FOR CONSTRUCTION THIS AGREEMENT, made and entered into on /~,~._~-. ,--~¢? ~/ , by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and BTE Concrete Formwork LLC , hereinafter called the "Contractor". WHEREAS, the City has caused to be prepared, in accordance with the law, specifications and other Contract Documents for the work herein described, and has approved and adopted said documents, and has caused to be published, in the manner and for the time required by law, an advertisement, for the project: Rio Grande Parkinq Garage West Stair Replacement, and, J WHEREAS, the Contractor, in response to such advertisement, or in response to direct invitation, has submitted to the City, in the manner and at the.time specified, a sealed Bid in accordance with the terms of said Invitation for Bids; and, WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined, and canvassed the Bids submitted in response to the published Invitation for Bids therefore, and as a result of such canvass has determined and declared the Contractor to be the lowest responsible and responsive bidder for the said Work and has duly awarded to the Contractor a 'Contract For Construction therefore, for the sum or sums set forth herein; NOW, THEREFORE, in consideration of the payments and Contract for Construction herein mentioned: The Contractor shall commence and complete the construction of the Work as fully described in the Contract Documents. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and other services necessary for the construCtion and completion of the Work described herein. The Contractor shall commence the work required by the Contract Documents within seven (7) consecutive calendar days after the date of "Notice To Proceed" and will complete the same by the date and time indicated in the Special Conditions unless the 'time is extended in accordance with appropriate., provisions in the Contract Documents. The Contractor agrees to perform all of the WOrk described in the Contract DocumentS and comply with the terms therein for a sum not to exceed Ninety-Five ThouSand Four Hundred Seventy Two ($95,472.00) DOLLARS or as shown on the BID proposal. The term "Contract Documents" means and includes the documents listed in the City of Aspen General Conditions .to Contracts for Construction (version GC97-2) and in the CCl-971 .doc Page 1 **CC1 14. The undersigned representative of the Contractor, as an inducement to the City to execute, this Contrabt For Construction, represents that he/she is. an authorized representative of the Contractor for the purposes of executing this Contract For Construction and that he/she has full and complete authority to enter into this Contract For Construction for the terms and conditions specified herein. IN WITNESS WHEREOF, the parties agree hereto have executed this Contrac( For Construction on the date first above written. ATTESTED BY: RECOMMENDED FOR APPROVAL: ~ity Engineeri-ng~ep~rtment CITY OF~AS~PEI~I, C.g~ORADO APPROVED AS TO FORM: ATTESTED BY: l o--'7- CONTRACTOR: NOte: certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. CC1~971 .doc Page 3 **CC1 STATE DEPARTMENT OF STATE CERTIFICATE I, DONETTA DAVIDSON, SECRETARY OF STATE OF THE STATE OF COLORADO HEREBY CERTIFY THAT ACCORDING TO THE RECORDS OF THIS OFFICE BTE CONCRETE FORMWORK, LLC (COLORADO LIMITED LIABILITY. COMPANY) FILE # 79967096525 WAS FILED IN THIS OFFICE ON July 22, 2~96 AND HAS COMPLIED WITH THE APPLICABLE PROVISIONS OF THE LAWS OF THE STATE OF COLORADO AND ON T~IS DATE IS IN GOOD STANDING AND AUTHORIZED AND COMPETENT TO TRANSACT BUSINESS OR TO CONDUCT ITS AFFAIRS WITHIN THIS STATE. Dated: June 06, 2007 SECRETARY OF STATE BOND NO. PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS: That we. the undersigned, as, BTE CONCRETE FORMWORK, LLC (~hnr~oal's Name) "' - address at P.O. BOX 1944~ GLENWOOD SPRINGS, CO a LIMITED LIABILITY COMPANY (L;er~ora~on, partnership, or' inQivlduaJ) ST. PAUL MERCURY INSURANCE COMPANY (Name of Sure~) P.0. BOX 60:].30, GRAND JUNCTION, CO 81506 (Address et Surety) SL5874 having a legal 15u§iness 81602 as Principal qereinafter ca'lled "Princ!pal" and a corporation organized under the laws of the State of MINNESOTA , and qualified'to transact business, n the Sta't~ of Co orado hereinafter caJ!e.d_."Surety'.':, are he!d_ and firmly..l~odnd unto the City .of Aspen, a Colorado home rule mt~mclpatlty, as Obt~gee, hereinafter called City , i.n the amount of: NINETY FIVE THOUSAI~ FOUR HUI~TDRED SEVENTY TWO AND 00/100 DOLLARS ($ 95,472.00), n lawful money of the United States for payment whereof Principal and. Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly unto these present. WHEREAS. Principal' has by written agreement dated FEBRUARY ~./ ,20__0Z~entered into a contract with City for Rio Grande Parking Garage West Stair Replacement in accordance with the Contract Documents which Contract' Documents is by reference made a part hereof, and is hereinafter referred to as the Contract. .................. NOW,-TF~EREFORE;'-if '.Rdi~'d~'21';~h'a;ll'Tw~llT"tct~ly' and faithfully perform its duties all the undertakings, · covenants terms, conditi61r~§:"b:'r~cJ'': ~:~'"r~ments of said Contract during the original term thereof, and any extensions thereof which may be granted by the'City, with or without notice to the Surety and during the 'guaranty period, and if Principal shall satisfy all claims and demands incurred under such Contract, and shall fully indemnify and save harmless City from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and 'r~pay the City all outlay and expense which the City may incur in making good any default, then this oblic, ation shall be void: otherw!se it shall remain in full force and effect. The Surety hereby waives notice of any alteration or extension of time made by tr~e City. Whenever Principal .shall be, and declared by City to de in default under the Contract,' the City having performed City's obligation hereunder, the Surety may promptly remedy the default or shall promptly: (1) Complete the Contract in accordance with its terms and conditions, or (2) Obtain a bid or bids for completing the Comrac~ in accordance with its terms and conditions and upon determination by Surety of the lowest responsible bidder, or, if the City elects, upon determination by the City and Surety jointly of the lowest responsible bidder arrange for a contract between such bidder and City, and make available as work progresses (even though there should be a default or succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of comoletion less the balance of the contract price, including other costs and damages for which the Surety may be liable hereunder the amoum set forth ~n the first paragraph hereof. The zerm "balance of the Contract price" as used in this paragraph, snail mean the total amount payable by City to Principal under the Contract anc any amendments thereto less the amount properly paid by City to Princioal. (3) Any contract or succession of contracts entered into hereunder for the completion of the Contract, shall also be subject to this bond as part of the original Contract obligations. r~o~ n'~ 4.. "PBI Page I This bond is intended To De in satisfactidn of, and in addition to. the bond required pursuant To Section 38-26- 106 C.R.S., as amended. This bond. as a peka'i~' a~'~'i~-~e~nkification bond.-~'~'1'1" ~i~' ~'n'(iile city to recover as part of the completion of.~h.~ .C..o.~Ka..ct..o~: !.h.~ .p.a_y.m.¢.n.t. q:Lap..y labor..ar..D ater al. costs_hereunder., actual and .consequential'.d~a'C e'~'.' liquidated and unliquidated damages; costs reasonabla"~t{5~ne:j~'fees and expert witness fees, includ~ing, without limitations, the fees of eric. ineering or architectural consultants.' Surety, for value received, hereby stipulates and agrees that to indemnify and save harmless the City to the extent of any and all payments ~n connection with the carrying out of the contract which the City may be requireo to maKe under the law by any reason of such failure or default of the Principal Further, Surety and Principal shall protect, defend, indemnify .and save harmless the City's officers, agents, servants, and employees from and against all claims and actions and all expenses incidental to the defense of such claims or actions based upon or arming .out of injuries or death of persons or damage to property caused by, o' sustained in connection with,'.this Contract by conditions created thereby, and on request of the City will assume t-he defense of any claim or action-brought against the City. No right of action shall accrue on this Bond to or for the use of any person or corporation other than the City nameo herein'or the em ployees, agents, administrators or successors of City. SIGNED AND SEALED this ? day of Fg:BRI]'ARY , 2004 SURETY:/ fl ' Title: ATTOR~-IN-FACT - (seal) NOTE: Accompany this bond with certified copy of General Power'of Attorney from the Surety to include the aate of the bond. (Date of Bond must not be prior to date of Contract.) f Principal is Partnership, all partners should execute Bond. PB1-971.ooc ~ mB1 Page 2 PAYMENT BOND ]~ON]~ NO. SL5874 KNOW ALL PERSONS BY THESE PRESENTS: That we. the under.signed as BTE CONCRETE FORMWORK, LLC having a legal business · , ,(Pnnr.~pal's Name) .......... adares's".at~.'.'~20.. 'g . ' ' ~'J" :~ ......................... :' --' ' ' ":'." '.' ....... :': ',-' ' Pnnopal's AO~ress) , . . .... ,. , ...-.- . : ': ~:':..}.... .'~'Z ..... -.:~ .,.: .... ~:.~.....~"- ;.:"..- .... -;,. a g~Z?gD ~Z~Z~Z$~ CO~A~ ., as Principal. hereinafter called "Principal", and (Go.oregon Pa~nersh~p. or (~ureys Name) P.O. BOX 60130, GRAND JUNCTION, CO 81506 , (.Sure~"$ Aa~reas) a corporation organized under the laws of the State of M~I',I'N'R. SO~A .... and qualified to transact business in. the State of Colorado, hereinafter called "Surety", are held and firmly bound unto the City of As~en, a Colorado home rule munictpality, as Obligee, hereinafter-called "City'-!;- in ~the:.amount.of: : ': ...... -'.~- ........ . :- ' .... NINETY ]FIVE THOUSAND FOUR HUNDRED SEVENTY TWO AND 00/~100 DOLLARS ($ '95,472.00). in lawful money of the United States for payment whereof Principal and Surety bind themselves, their heirs executors administrators, successors and assigns, jointly and severally, .fi{mly unto these present. WHEREAS, Principal has.by written, agreeFnent dated Fg3RUAR¥ ff , 20_0,4entered into a contract with City for a project entitled: Rio Grande Parking Garage West Stair Replacement in accordance with the Contract Documents which Contract Documents is by r:eferehce_ made a part .hereof, and s hereinafter rel~erred .to as tl~; Contract. NO)A/.,_.T. HE~EE.QRE,...T. HE.C~QblDLT. I..O..IXJ...QE..THI.S~OBLIGA-TI~.N is .sucl~.~hat. Jf.P.fir).cip_al:.shall.proonptly ~ake;..payment to ail claimants'hereinafter defined, for all labor and material' used or reasonably required for the use in the performance of the Contract. then this obiigation shall be void; otlqerwise it:shall .£emain.i~.fu[Lforce..and..e)~fect,..sub..iect,. however, to the following .conditions: 1. A Claimam is defined as having a direct contract with the Principal or with subcontractor of the Principal for labor, material, or both, used Or reasonably required for the performance of the Contract. labor and material being construed to include that Ball: of water, gas, power, light, heat, oil. gasoline, telephone s'ervice or rental equipment directly applicable to the Cc qtract. 2. The above-name Principal and Surety hereby jointly and severally agree with the City that every claimant as herein defined who has not been paid in full before the expiration of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed or materials were furnished by such c!aimant, may. sue on this bond for use of such sums as may be justly due claimant, and have execution thereon. The City shall not be iiable for the payment of any costs or expenses of any such suit. 3. No suit or action shall commence 'hereunder by any claimant: (a) Unless claimant, other than one having a direct contract with the Principal shal have given written notice ~o any of the following: The Principal. the City, or the Surety above named, within ninety (90) days after such claimam did or oerformed the last of the work or labor, or furnished the last of the materiat for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom tiao work of ,abor was done or performed. Such notice shall be serveo by mailing the same registered mail or. certified mail postage prepaid, in an envelooe address.ed to the Principal, Cit~ or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner ~n which legal process may be served in the State of Colorado. YB1-971 .doc **YB1 Page: (b) After the expiration of one (1) year following the date on which Principal ceased work on said Contract it being understood however, that if any limitation embodied ir this Bond is orohibited by any law controlling the construction hereof, such limitation snail be deemed to <:e amended so as to be equal to the minimum perfod of lirnitation permitted by such law. (c) Other than in a state of comPet, eqt jurisdiction in an<: for the County of Pitkin State of CoLorado. ::':: '-~.~i:' -_ . .. .- .. 7:. , ::i:" ;":i ~-..:~" 4. The amount of this Bond shall be reduced to the extent of any payment or payments made hereunder, inclusive of the payment by surety of liens or claims which may be filed of record against the improvementls), whether or not claim f. or the amount <:f such lien be presented under and against this Bond. 5. This Bond is intdnded to be in satisfaction of. and in addition to, the bond required pursuant to Section 38-26- 105. C.R.S., as amended. 6. No final settlement <:etween the City and Principal shall abridge the right of any beneficiaw hereunder, whose claim may be unsatisfied. SIGNED AND SEALED this ' dayof FEBRUARY ,2004 PRINC PAL: BTE C.0.NCRETE FORt,~0KK, · Title: LLC Attest: ..... :zz~Q~~~'..,:. :.,. ..... :-: '...,..- .., ..... ........... ..-,.'?: ....... ..-. :..-..? -'.-...-_... ?' ....... .: L-..'..~ ' .. Title: A.$'T~--'~AC~ ......... ':.. '~::.:" ' i"'-' '.". "."'.::... /:' ":' -.'.' : ' ',i" ";"' ..~'.~..:.[7'".. .. ...... ~' ~ NOTE: Accompany this bond with certified copy of General Power of Attorney from the Surety Compan'y to include ihe date of the bond. (Date of Bond must not be prior to date of Contract), If Principal is a Partnership, all panners should execute Bond YB1-971.do¢ **YBi Page: 2 ..... : MAINTENANCE BOND BOND NO. SL5874 "'... ~.'.-:':~ '" ;.! -~'..-"..~:~'b ~ ,..-"~,'.~: :'.- ~1 '7'~: · ' 2' -.' .:.. ~!~ '.'} ',~'~:~ .... ~:¥i~ ;". ':".";i -',..': · ': .: :7' .... ! .:~L. :i 1' "': ..... ....... : ......... ~'"'" ":' " ': '~ "' ' "' ': ' ":~ { ~'"' '~' KNOW ALL PERSONS BY THESE PRESENTS, That we, the undersiDned, as BTE CONCRETE " 81602 FORMWORK, LLC, of P.O. BOX 1944, GLENWOOD SPRINGS-, CO, as Princioal. hereinafter ~eferred to as "Principal", and ST. PAUL MERCURY INSURANCE COMPANY P.O. BOX 60130, GRAND JUNCTION, CO 81.506 a corporation organized under the laws of the State of MINNESOTA and qualified to transact business in the State of Colorado, as "Surety" are held and firmly bound unto th'e City of Aspen. Colorado as obligee, hereinafter referred to as "City," in the penal sum of: NINETY FIVE THOUSAND FOUR HUNDRED SEVENTY TWO AND 00/100. Dollars ($.95,472.00 ........ ), 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 enterec i'~to a written Contract with the obtigee dated FEBRgARYWes(~'t Stai'r 20 04, for furnishing all equipment, labor, tools and materials for: Rio Grande Parking Garage Replacement in accordance with detailed plans and specifications on file in the office of the City Clerk of said City, a copy of which Contract is attached hereto and made a part hereof. NOW THEREFORE. The conditions of the foregoing obligations are such that if the said Principal shall well :and.-truly p..e. dorm. all the..covens hts. and..., conditions...ol~ this.. Contract..on.. the..part....of..said. Principal to: be' performed, and reoair or replace all defects for a F~eriod of two year(s) as provided herein, and protect and .............. saYe...harmless.,.the. C.i~:y'~-of:.Aspen,..-Colo[ado, :"fi~'o'rh all loss and..damages...to.life...or, preperty...suffer, ed.di'~L:. sustained b)~/any person, firm or corporation, caused by said .Principal or his agents or his .employees. in the ~erformance of said work; or by, or in consequence of any.negligence, carelessness., or misconduct in gua{ding and protecting same or from any improper or defective equipmen~ or materials used in the work, or o~her damages, costs and expenses and set forth in such Contracts, then' this obligation shall be void otl'erwise to remain in fu! force and effect in law. This Bond guarantees that the material and equipment furnished and used, and workmanship employed in the performance of the work described in this Contract wi1 be of such character and quality as to insure it to be free from ali' defects and i~ continuous good order and in a condition satisfactory to the Governing Body of the City of Aspen for a period of two.year(s) from the date of'the issuance of the'Certificate of CompLetion. This Bond guarantees that the said Principal will keep and maintain the subject work without additional charge or cost to the City of a period specified, and make SUCh repairs or replacement of any defective construction as the City may deem necessary. MB1-971.doc *'MB1 Page: "' The said Principal shall not ~e recuired to maintain any part of the improvement under this guarantee which. after its completion and acceptance shall have been -emoved or altered by the City or its agent. SIGNED AND sEALED this 6/ day of FEBRUARY _. , 2O O4 PRiNCIP~ BTE C~ONCRETE FORMWORK ,' 'LLC SURETY..~¢~AU~-- ~¢_.RCT3'RY/~'~,SUILANCE COM?ANY / (seal) By: ~ Title: ~TSRNE~ IN-FACT (Accompany this bond with cerified copy of General Power of Attorney from the Surety Company to include the date of t,he bond. **MB~ Page: 2 MB1-971 .c~oc ACORD,. CERTIFICATE OF LIABILITY INSURANC . s%os t DATE<M DDNY, ......... ....... ...... - 01/29/04 PRODUCER Blanchard Insurance Group Inc. P.O. Box 60130 Grand Junction CO 81506 Phone:970-245-8011 Fax:970-245-8016 INSURED BTE Concrete Formwork, LLC P. 0. Box 1944 Glenwood Springs CO 81602 THIS CERTIFICATE IS ISSUED AS A MAWr. ER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, .EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURER A: Maryland Casualty Con, any INSURER B: Pinnacol Assurance ~NSURERC: St. Paul Pire & Marine Ins. Co INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE L STED BE[OW HAVE BEEN ISSUED TO ?HE INSURED NAMED ABOVE'FORTHE'P~)I/[CY ~'ER'IOD'IIq01cATED~ NOTWITHSTANDING ANY REQUIREMENT, TERM OR COND TION Of ANY CONTRACT OR oTHER DOCUMENT WIYH RESPECTTO ~HICH ~HJS' CERTJFicATE'~AY BE iSSUED OR ' · MAY PERTAIN, THE INSURANCE AFFORDED BY THE POL C ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, ~.x~UsI~J~N~ ~N~ ~0~DiTIONs OF SUCH ' POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ' POLICY ~-~c'r~VE POLICY EXPIRATION INSR LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1~ 000 · 000 A X COMMERCIAL GENERAL LIABIUTY CPO3758023 02/01/04 02/01/05 FIRE DAMAGE (Any one fire) $ 300, 000 CLAIMS MADE OCCUR MED EXP (Any one person) $ i 0 · 000 X XCU PERSONAL & ADV IN'JURY $ 1 ~, 000, 000 ; GENERAL AGGREGATE $ 2 · 000 · 000 GEN'L AGGREGATE LIMIT APPL[ES PER: PRODUCTS-COMP/OPAGG $ 2,000·000 t POLiCY ~ PRO- I JECT [---] LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT A ~ ANY AUTO CPO3758023 02/01/04 02/'01/05 (Ea accident) $1#000·000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ X HIRED AUTOS BODILY IN~IURY X NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE (Per accident) · GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG EXCESS LIABILITY . EACH OCCURRENCE $ I · 000 ·.000 A ~ {OCCUR [----]CLA~MSMAOE AUC399169000 03/14/04 02/01/05 AGGREGATE $1·000·000 $ X I DEDUCTIBLE $ 1 RETENTION $ 10,000 WORKERS COMPENSATION AND I WC STATU- TORY LIMITS ER ]~, EMPLOYERS' LIABILITY 1837050 04/01/03 04/01/04 E.L. EACH AccIDENT $ 500000 E.L. DISEASE - EA. EMPLOYEE $ 500000 E.L. DISEASE - POLICY LIMIT J $ 500000 OTHER C Contractors Equip IM08305618 02/01/04 02/01/05 Specia'l 1000 Form Deduct ible DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PRDVISIONS Project: Rio Grande Parking Garage West Stair Replacement #2003-041 City of Aspen is additional insured. CERTIFICATE HOLDER I ~ I ADDITIONAL INSURED; INSURER LETTER: CANCELLATION The City of Aspen 130 So Galena Street Aspen CO 81611-1975 0000000 ACORD 25-S (7/97) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL '10 DAYS WRITTEN NOTICE'TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE .. .... j~ '. Cathy Son. net s © ACORD CORPORATION 1988 StPaui Surety St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Seaboard Surety Company United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Medical Liability Insurance Company Bond No. RIDER CONTAINING DISCLOSURE NOTICE OF TERRORISM COVERAGE SL5874 This disclosure notice is required by the Terr'orism Risk Insurance Act o[_2002 (the "Act"). No action is required on your part. This Disclosure Notice is incorporated in and a part of the attached bond, and is effective the date of the bond. YOU should know that, effective November 26, 2002, any losses covered by the attached bond that are caused by certified acts of terrorism would be partially reimbursed by the United States under a formula established by the Act. Under this formula, the United States reimburses 90% of covered terrorism losses exceeding the statutodly established deductible paid by the insurance company providing the coverage. Under the Act, there is a cap on our liability to pay for covered terrorism losses if the aggregate amount of insured losses under the Act exceeds $100,000,000,000 during the applicable period for all insureds and all insurers combined. In that case, we will not be liable for the payment of any amount which exceeds that aggregate amount of $100,000,000,000. The portion of your premium that is attributable to coverage for acts of terrorism is $O.o0. IMPORTANT NOTE: THE COST OF TERRORISM COVERAGE iS SUBJECT TO CHANGE ON ANY BONDS THAT PREMIUM iS CHARGED ANNUALLY. POWER OF ATTORNEY Seaboard Surety Company St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance~ Company United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Power of Attorney No. 20592 Certificate No. 209206 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, and that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Comp,my and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, and that United States Fidelity and Guaranty Company is a corporation d[ily organized uuder the laws of the State of Maryland, m~d that Fidelity and Guaranty Insurance Compm~y is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance U~derwriters, inc. is a corporation duly ~rganized ~inder the laws t~f the state 0f wisconsin (herein cOllectiVely called the "Co,tpanies'); and that the companies d° hereby ~nake, constitnte and appoint Barry N. Blanchard, Eileen A. Blanchard, T/mothy J. Blanchard, Deborah K. Winn and Sandra K. Pierce Grand Junction Colorado of the City of State , their true and lawful Attomey(s)-in-Fact, each in their separate capacity if more than one is named above, to sign its name as surety to, and to execute, seal and acknowledge any and all bonds, underta'kings, contracts and other written instruments in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or pernfitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed this 7th day of June 1999 Seaboard Surety Company St. Paul Fire and Marine Insurance Cmnpany St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Q 4~7~..~7 State of iVlaryland City of Baltimore On this 7th day of June Michael R. MclGbben, who ackamwledged themselves to b,'l~uine Insm'ance Company, St. Patti Guardian Insurar~c.e ~¢'~Pany, F~. ............. [ ..... - ........ C' .......... *ami Fi,qelitv and Gfiara~/'tv in~fiiian~e Und United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Incl MICHAEL B. KEEGAN, Vice President MICHAEL R. MCKIBBENi Assistant Secretary re me, the undersigned officer, personally appeared Michael B. Keegan and Secretary, respectively, of SeabOm'd Surety Company, St. Paul Fire and ? h~surance Comp:my, united States FidelitY and GuarantY Company, Fidelity and Inc. and that they, as such, being authorized S° tO do, executed the foregoing NOTICE TO PROCEED [ T h e C I~y ol A spca 130 S. Galena Street Aspen, Colorado 81611 Check only one category,: a and delivered xed / Date: March 2004 Project No. 2003-841 RE: Rio Grande Parking Garage West Stairs Replacement Dear BT£ Concrete (c/o Terry Ostrom) · Enclosed please find an executed copy of the Contract Documents for the above referenced project. You are hereby informed to attend a mandatory Pre-construction Conference and you are authorized to commence construction thereafter as set forth in the Contract Documents. If you have any questions concerning this project please do not hesitate to call the Asset Department. Again, thank you for your bid and your continued interest in this project. Sin~/ City'of Aspen Asset Department NP1-971 doc NP1 Daily Construction Log 130 South Galena Street, Asl~en, Colorado 8~6~ ~ PROJECT # BID # PROJECT TITLE: PROJECT LOCATION: DATE: WEATHER: WORKING DAYS USED CONTRACTOR: PAGE OF TRAFFIC CONDITIONS: WORKING DAYS LEFT SUPERINTENDENT: INSPECTOR: BID ITEM DESCRIPTION CONTRACT TODAY'S TOTAL · QUANTITY QUANTITY TO DATE SUMMARY OF TODAY'S WORK AND COMMENTS: CONTRACTOR: CITY INSPECTOR: DATE: ENG-304 DCL'I City of Aspen, Colorado Project No. 2003-841 CHANGE ORDER * SAMPLE Change Order No.: PROJECT: Rio Grande Parking Garage West Stairs Replacement DATE OF ISSUANCE: OWNER: City of Aspen CONTRACTOR: BTE Concrete You are directed to make the following changes in the Contract Documents - Description: Purpose of Change Order: Attachments: (List documents supporting change) CHANGE IN CONTRACT PRICE: Original Contract Price: $95,472.00 CHANGE IN CONTRACT TIME: Original Contract Time: 12 weeks from Notice to Proceed Previous Change Order No to No. Net Change from previous Change Orders Contract Price prior to this Change Order Contract Time prior to this Change Order days or date Net Increase (decrease) of this Change Order Net Increase (decrease) of this Change Order days Contract Price with all approved Change Orders Contract Time with all approved Change Orders days or date RECOMMENDED: by: OvvTler APPROVED: by: Contractor APPROVED: For valuable consideration, CLAIM RELEASE Contractor the sufficiency of which is hereby acka ~-fbCT_ ¥~'~1 ~;¢N ~q~} Contractor hereby releases the City of Aspen, Colorado and waives all riL .............. .............. ~ Services, machinery, tools, equipment, or materials furnished Prior to , while engaged as a Contractor for the work on the Rio Grande Parking Garage West Stairs Replacement Project. Furthermore, the undersigned waives any and all rights the undersigned may have to file a lien, notice of claim, lis pendens or legal action against the City of Aspen, Colorado, pursuant to Section 38-26- 107, C.R.S., or to make any claim whatsoever against the City of Aspen, Colorado, or its bond, for labor services, supplies, machinery, tools, equipment or materials furnished in connection with the above described work. In the event an employee or agent or other person hired by the undersigned Contractor to perform the work under the contract brings a claim against the City of Aspen, Colorado for payment of labor or materials, or both, the undersigned Contractor agrees to indemnify the City of Aspen, Colorado and to satisfy fully any such claim brought against the City of Aspen, Colorado and its employees and officers. Attest: Corporate Seal STATE OF COLORADO ) ) COUNTY ) Before me SS. By: County, Colorado personally appeared to me personally to be the person(s) whose signature(s) in my presence this of , A.D. 2004. My commission expires: (Seal) Contractor , a notary public and for known Notary Public day ***CR2 PROJECT CLOSURE FORM Th ~ City orA sp=n I 130 S. Galena Street Aspen, Colorado 81611 AD VER TISEMENT AND FINAL ACCEPTANCE Date: Contact Person Company Address City, State Zip Re: Project Title City Project #: , Bid #: You are hereby notified that the following advertisement fOr Final Payment appeared in a local newspaper dated "After thirty (30) consecutive calendar days from the date of second publication for project closure and release of retainage, the City of Aspen will pay to Contractor's Name, Contractor, the full retainage on the project. All persons .having claims for labor, rentals, services, or materials furnished under this Contract, who shall not have been paid therefore, shall present the same to the City of Aspen in writing and verified prior to date specified above, or the City of Aspen shall be free of all obligations and liabilities for attempting to withhold payment to the Contractor." Subject to the terms of the Contract Documents the Final Payment will be attached and forwarded in the amount of ( ). Acceptance of which the Contractor thereby warrants that all persons doing work upon or furnishing materials for work under this Agreement have been paid in full. Failure to sign, approve and return one copy of this form, or to protest, within ten (10) consecutive calendar days constitutes proof of receipt and acceptance by the Contractor of the final amount due under the Agreement. Please acknowledge by your signature below that the final amount of the Contract was paid and that the terms and conditions set forth above and in the Contract Documents relating to final payment are understood and acceptedl Contractor CLOSURE 1 .doc PC1