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HomeMy WebLinkAboutresolution.council.113-04RESOLUTION # 113 (Series of 2004) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND BTE CONCRETE FORMWORK LLC SETTiNG FORTH THE TERMS AND CONDITIONS REGARDING CONSTRUCTION OF THE ASPEN CLUB PEDESTRIAN BRIDGE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, ~here has been submitted to the City Council a contract between the City of Aspen, Colorado, and BTE Concrete Formwork LLC, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and BTE Concrete Formwork LLC regarding Construction of the Aspen Club Pedestrian Bridge, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated:~°~~~~j /.5-~ ~~ / I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a .rne~tin. g h~el~] .November 8, 2004. ~ athryn S. Koch, City Clerk At=t achment= 'A' ASPEN CLUB PEDESTRIAN BRIDGE Comprehensive Project Costs Aspen Parks Department 1-Nov-04 EXPENDITURE TOTAL COST DESIGN City Staff P.M. Payroll 2004 to date Consultant Fees: Survey Consultant Fees: Engineering/Design Total Design Costs Allow Allow Allow 1,014.00 3,450.00 12,800.00 17,264.00 CONTRACTED CONSTRUCTION BID COSTS Pedestrian Bridge Supply & Installation 1 LS 62,000.00 62,000.00 Subtotal Supply & Installation Costs IN-HOUSE CONSTRUCTION COSTS In-House Project Management 1 LS In-House Construction Labor incl. 1 LS Existing Bridge Demolition & Removal Bituminus Bikeway (3") 53 SY Aggregate Base Course (Class 6) 12 CY Treated Wood Fence (60") 100 LF 1,340.00 14,350.00 16.00 10.50 22.00 62,000.00 1,340.00 14,350.00 848.00 126.00 2,200.00 Subtotal In-House Construction Costs LANDSCAPE RESTORATION/PLANTING Seeding (Native) In-House Restoration Labor (3 man crew) LS 650.00 LS 1,200.00 18,864.00 650.00 1,200.00 Subtotal Landscape Restoration/Planting Costs Total Construction Estimate 1,850.00 63,850.00 Design Contracted Construction Costs In-House Construction Costs Landscape Restoration/Planting Costs 17,264.00 62,000.00 18,864.00 1,850.00 Total Project Cost 99,978.00 IPROJECT FUND SOURCES Parks Capital Project Improvement Budget AMOUNT 100,000.00 Total Fund Sources 100,000.00 PAYMENT 80ND No. $L5878 KN©W ALL PERSONS BY THESE PRE~ENTb: That we, the undersigned~ as, BTg Concrete Formwork, LLC having a lec~al business (Principal's Name) address at 1~.0. Box 1944, Glenwood Springs, CO 81602 (Principal's Address) ' a Limited Liability Company , as Principal, hereinafter called "Principal", and (Corporation. Partnershio~ or Indiviaual) - St. Paul Mercury Insurance Company (Sureb/'s Name) P.O. Box 60130, Grand Junction, CO 81506 (Suret¥'s Address) a corporation organized under the laws of the State of Minnesota , and qualifie.d, to transact business in the State of Colorado, hereinafter called "Surety", are held and firmly bcund unto the City of Assen. a'Colorado home, rule municipality, as Obtigee, ~ereinafter called "City", in the amount of: s1×t¥ Two Thousand and 00/100 Dollars ($62~000.00), in lawfu money of the United States for payment whereof Principal and Sure~y bind themselves, their heirs, executors, a~:ministrators, successors and assigns, iointly and severally, firmly unto these present. WHEREAS, Principal has by written agreement date(:/~l/~/~¢' ~ , 2004, en~e~ into a contrac~ With the City for a project entitled Aspen Club Pedestrian 13ridqe- accordance with the Contract Documents which Contrac~ Documents is by reference made a 3art hereof, and is hereinafter referred to as the Contract. NOW. THEREFORE. -FHE CONDITION OF THIS OBLIGATION is such that, if Principal shal promptly make payment to all claimants hereinafter defined, for all labor-and material used or reasonably required-for the use n the performance of the Contract. then this obligation shall be void; otherwise it shall remain ]r~ full -'orce and effect, subject, however, to the following conditions: 1. A Claimant is defined as having a direct contract with the Principal orwith 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 part of water, gas, power, light, heat, oil, gasoline, telephone service or renta equipmem directly applicable to the Contract. 2. The above-name Principal and Surety hereby jointly and severally agree with the City that even./claimant as herein aefined wno has no~ 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 cla~manL may sue on this bond for use of such sums as may se justly due claimant, ant have execution thereon. The City shall no~ be liable 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 shall have given written notice to any of the following: The Princioat, the City. or the Surety above named, within ninety (90) days after such claimant did or pedormed the last of the work or labor, or furnished the last of the material for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party zo whom the materials were furnished, or for whom the work of ]aborwas done or performed. Such notice shall be served by mailing the same registered mail er codified mail, postage preF_,aid, in' an envelope addressed to the Principal, City or Sure'.'b', at ary place where an ol~ce is regularly maintained for the transaction of business, or served 'm any manner n which legal process may be served in the State of Colorado. (b) After the excitation of one (I) year following the date on Whic,h Principa ceased work on said Contract, it being understood, however, that if any limitation embodied in this Bond is proh hired by any !aw controlling the construction hereof, such limitation shall be deemed To be amended so as to be equal to the minimum period of limitation permitted by such law. (c) Other than in a state of competent jurisdiction in and for the County of Pitkin, State of Colorado. 4. The amount of this Bond shall be reduced to the extent of any payment or payments made hereunder, inclusive of the payment by sure~ of liens or claims which may be filed of record against the improvemenT(s), whether .or not claim for the amount of such lien oe presented under and against this Bond. 5. This Bond is intended to be in satisfaction of, and in addition to, the .bond required pursuant to Section 38-26-I05, C.R.S., as amenaea. 6. No final seE!ement between the City. and Principal shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied. SIGNED AND SEALED this \-L.- *~' ~ -- dav of 017~,~,'~2_ , 2004 PRINCIPAL: BTE Concrete Fo.rmwork, LLC Title: ~:-~r-~£~fz. ~>f-//~6>~--/% SLJRETY: St. Paul Mercury ~-~purance Company Title: At torne¥-I~Fact NOTE: Accompany this bcnd with certified copy of General Power of Attorney from the Surety Company tc include ~ne date of the bond. (Date of Bona must' not be prior to date of Contract). Principal is a :artnership, all oartners should execute Bond. ... MAINTENANCE BOND Bond No. SL5878 KNOW ALL PERSONS BY THESE PRESENTS, That we, the undersigned, as BTE Concrete Formwork, LLC , Of P.O. Box 1944, Glenwood Springs, CO 81602 , as Principal, hereinafter referred lo as "Principal", an 'St. Paul Mercury Insur.anc.e Company , a corporation organized under the.laws of the State of Minnesota , and qualified to ;ransact business ~n the State of Colorado, as "Surety" are held and firmly bound unto the City of Aseen. Colorado, as obligee, hereinafter referred to. as "City," in the penal sum of: Sixty Two Thousand and 00/100 Dollars ($ 62,000. oo .), lawful money of the United States of America, for the Payment of which sum, well and truly to be mace to the City, we bind ourselves, and our heirs executors, administrators, successors, and assignees, jointly and severally, by these presents: /H.,ERE~AS, said,Principal has entered into a written Contract with the obligee dated ,~,~ ~/'~ , '2004, for furnishing al.l equ~pmenL labor, tools and materials for: Aspen Club Pedestrian Bridge in accordance with detailed :lens aha 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 perform all the covenants and conditions of this Contract on the part of said Principal to be pedormed, and repair or replace all defects for a period of mo year(s) as provided herein, and protect and save'harmless the City of Aspen, Colorado, from all loss and damages to life or property suffered or sustained by any'person, firm or corporation, caused by'said Principal or his agents or his employees, in the performance of said work, or by, or in consequence of any negligence, carelessness, or misconduct in guarding and protecting same, or from any imp.roper or defective equipment or materials used in the work, or other damages, costs and expenses and set forth in such Contracts, then this obligation shall be void otherwise to remain in full force and effect in law. This Bond guarantees that the material and equipment furnished and used, and workmanship employed in the pedormance of the work described in this Contract will be of such character and quality as to insu(e it to be free from alt defects.and in continuous good order and in a condition satisfactory to the Governing Body of the City of Aspen for a period of b~vo year(s) from the date of the issuance of the Certificate of Completionl This Bond guarantees that the said Principal will keep and maintain the subject work without additional charge or cast to the City of a period specified, and make such repairs or replacement of any defective construction as the City may deem necessary. The said Principal shall not be required to maintain any part of the improvement under this guarantee whiCh, after its completion and acceptance shall have been removed or altered by the City or its agenL StGiXlED AND SEALED this 2004. ' PRtNCIPA'L: BTE Concrete Formwork, LLC By: Title: SURETY: .~'Paul ~M, ercury Insurance Company By:TimJt~ad~ Attest: Title: At t o rney-Y~n_~Fa c t (seat) (Accompany this bond with certified copy of General Power of Attorney from the Surety Company to inciuide the date of the bond. StPaul 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. SL5878 RIDER CONTAINING DISCLOSURE NOTICE OF TERRORISM COVERAGE This disclosure notice is required by the Terrorism Risk Insurance Act of 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 statutorily 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.oo. IMPORTANT NOTE: THE COST OF TERRORISM COVERAGE IS SUBJECT TO CHANGE ON ANY BONDS THAT PREMIUM IS CHARGED ANNUALLY. ACORD.. PRODUCER Blanchard Insurance Group Inc. P.O. Box 60130 Grand Junction CO 81506 Phone:970'24`5-8011 Fax=970-24`5-8016 INSURED CERTIFICATE OF LIABILITy INsURANC & c. ; ..,. BATEll/03/O4` M OD y THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOESNOT AMEND; EXTEND OR ALTER THE COVERAGE AFFORDED 'BY THE POL!C!ES BELOW; BTE Concrete Formwork, LLC P. O. Box 194`4` Glenwood Springs CO 81602 INSURERS AFFORDING COVERAGE INSURERA: Maryland Casualty Company INSURERB: Pinnacol Assurance INSURERC: St. Paul Fire & Marine Ins. Co INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND'CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMSi INSR POLICY EFFECTIVE POLICY EXPIRATION LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY} DATE (MM/DD/YY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1 · 000 · 000 A X COMMERCIALGENERALLIABILITY CPO3758023 02/01/04. 02/01/05 FIRE DAMAGE (Any one fire) $ 300 # 000 I CLAIMS MADE ~ OCCUR MED EXP (Any one person) $ 10,000 X Ex];), colla];)se PERSONAL&ADVINJURY $ 1· 000 · 000 GENERAL AGGREGATE $ 2· 000 · 000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/DP AGG $ 2 · 000 · 000 I POLICY ~-~PRO' JECT ['~ LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT A X ANYAUTO CPO3758023 02/01/04` 02/01/05 (Eaaccident) $ 1# 000 · 000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ X HIRED AUTOS BODILY INJURY X NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY. EA ACCIDENT $ ANY AUTO OTHER THAN EAACC $ AUTO ONLY: AGG $ EXCESS LIABILITY EACH OCCURRENCE $ 1 · 0 0 0 · 0 0 0 A I OCCUR ~ CLAIMSMADE AUC399169000 02/01/04` 02/01/05 AGGREGATE $ 1· 000 · 000 $ DEDUCTIBLE $ X RETENTION $ 10· 000 $ WORKERS COMPENSATION AND I WC STATU- OTH- TORY L M TS ER EMPLOYERS' LIABILITY B 1837050 04`/01/04` 04`/01/05 E.L. EACH ACCIDENT $ 500000 E.L. DISEASE - EA EMPLOYEE $ 500000 E.L. DISEASE - POLICY LIMIT $ 500000 OTHER C Contractors Equip IM08305618 02/01/04` 02/01/05 Special 1000 Form Deduct ible DESCRIPTION OF OPERATIONS/LOCATIONS~/EHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Pro~ect: As~en Club Pedestrian Bridge. City of As~en & City of Aspen's officers & employees are additional insureds. This insurance is Dr£ma~, waiver of subrogation in favor of City of ASpen included for all pOlicies. CERTIFICATE HOLDER I N I ADDITIONAL INSURED; INSURER LETTER: CANCELLATION The City of Aspen 130 So Galena St Aspen CO 81611 0000000 ACORO '25;S (7/97) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORETRE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~ 0 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 ~/- -~, /' ~ .: Sommers ca~ny-- - . ©ACORD coRPORATiON IMPORTANT If the certificate holder iS an ADDITIONAL iNSURED, thb p01icy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditiOns of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsemen!(s). DISCLAIMER The Certificate of Insurance on the reverse s de of th s form does not constitute a contract between the issuing insurer(s), authorized represe~tatiW O; P;¢~d'~C~;i ;nd"~'r~'~iii~a~-'~'iaerl n*(~l: a~ ii"' affirmatively or negatively amend, extend or alter the coverage afforded by the polioies listed thereon. ACORD 25'S (7/'~7) POWER OF ATTORNEY Seaboard Surety Company United States Fidelity and Guaranty Company St. Paul Fire and Marine Insurance Company Fidelity and Guaranty Insurance Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Mercury Insurance Company Power of Attorney No. 20592 Certificate No. 20922 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 Company 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 duly organized under the laws of the State of Maryland, and that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies'), and that the Companies do hereby make, constitute and appoint Barry N. Blanchard, Eileen A. Blanchard, Timothy J. Blanchard, Deborah K. Winn and Sandra K. Pierce of the City of Grand Junction State Colorado their true and lawful Attorney(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, Undertakings, 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 execuiing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed this Seaboard Surety Company St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company State of M~l~d City of B~timore On ~is 7~ day of J~e Michael R. McKibben, who acknowledged themselves to Marine Insurance Company, St. Guaranty Insurance Company, and Fidelity and instrument for the purposes therein contained by signing In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 13th day of July, 2002. 7th day of June 1999 United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. MICHAEL B. KEEGAN, Vice President MICHAEL R. MCKIBBEN, Assistant Secretary me, the undersigned officer, personally appeared Michael B. Keegan and Secretary, respectively, of Seaboard Surety Company, St. Paul Fire and Company, United States Fidelity and Guaranty Company, Fidelity and Inc. and that they, as such, being authorized so to do, executed the foregoing themselves as duly authorized officers. REBECCA EASLEY-ONOKALA, Notary Public This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of 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, and Fidelity and Guaranty Insurance Underwriters, Inc. on September 2, 1998, which resolutions are now in full force and effect, reading as follows: RESOLVED, that in connection with the fidelity and surety insurance business of the Company, all bonds, undertakings, contracts and other instruments relating to said business may be signed, executed, and acknowledged by persons or entities appointed as Attorney(s)-in-Fact pursuant to a Power of Attorney issued in accordance with these resolutions. Said Power(s) of Attorney for and on behalf of the Company may and shall be executed in the name and on behalf of the Company, either by the Chairman, or the President, or any Vice President, or an Assistant Vice President, jointly with the Secretary or an Assistant Secretary, under their respective designations. The signature of such officers may be engraved, printed or lithographed. The signature of each of the foregoing officers and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Attorney(s)-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and subject to any limitations set forth therein, any such Power of Attorney or certificate beating such facsimile signature or facsimile seal shall be valid and binding upon the Company, and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is validly attached; and RESOLVED FURTHER, that Attorney(s)-in-Fact shall have the power and authority, and, in any case, subject to the terms and limitations of the Power of Attorney issued them, to execute and deliver on behalf of the Company and to attach the seal of the Company to any and all bonds and undertakings, and other writings obligatory in the nature thereof, and any such instrument executed by such Attomey(s)-in-Fact shall be as binding upon the Company as if signed by an Executive Officer and sealed and attested to by the Secretary of the Company. I, Michael R. McKibben, Assistant Secretary of 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, and Fidelity and Guaranty Insurance Underwriters, Inc. do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I hereunto set my hand this Q........ day of 2004 Michael R. McKibben, Assistant Secretary To verify the authenticity of this Power of Attorney, call 1-800-421-3880 and ask for the Power of Attorney clerk. Please refer to the Power of Attorney number, the above-named individuals and the details of the bond to which the power is attached. 86326 Rev. 4-9g Printed in U.S.A, CONTRACT FOR CONSTRUCTION (Short Form) TItIS CONTRACT, made and entered into on November 8~ 2004~ by and between the CITY OF ASPEN, Colorado, hereinafter called the "City", and B.T.E. CONCRETE LLC, hereinafter called the "Contractor". THEREFORE, in consideration of the mutual covenants and Contracts herein contained, and for other good and v, aluable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Construction of Project. Contractor agrees to furnish all labor, materials, tools, machinery, equipment, temporary utilities, transportation and any other facilities needed therefor, and to complete in a good, workmanlike and substantial manner the Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit "A" which is incorporated herein as if fully set forth (the "Project"). 2. Plans and Specifications; Compliance with Laws. The Project is to be constructed and completed in strict conformance with the Scope of Work and/or Proposal appended hereto for the same approved in writing by the parties hereto. The,Project shall also be constructed' and completed in strict compliance with all laws, ordinances, rules, regulations of all applicable governmental authorities, and the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4-08-040. Cc, n~actcr 3. Payments to Contractor. In consideration of the covenants and Contracts herein contained being performed and kept by Contractor, including the supplying of all labor, materials and services required by this Contract, and the construction and completion of the Project, City agrees to pay Contractor a stun not to exceed SIXTY-TWO THOUSAND ($62,000.00) DOLLARS or as shown on Exhibit "A'. 4. Commencement and Completion. Contractor agrees to commence work hereunder immediately upon execution hereof, to prosecute said work thereafter diligently and continuously to completion, and in any and all events to substantially complete the same not later than May 30th, 2005, subject to such delays as are permissible under the "Extension of Time for Completion" section of this Contract, 5. Payment af Bills and Charges. Contractor shall pay promptly all valid bills and charges for material, labor, machinery, equipment or any other service or facility used in connection with or arising out of the Project, and shall obtain periodic releases from all subcontractors and material suppliers supplying labor or materials to the Project concurrently with Contractor's delivering any payment to such subcontractors and material suppliers. Contractor shall indemnify and hold City and City's officers, employees, agents, successors and assigns free and harmless against all expenses and liability suffered or incurred in connection with the claims of any such subcontractors or material suppliers, including but not limited to court costs and attorney's fees resulting or arising therefrom; provided that Contractor shall be excused from this obligation to the extent that City is in arrears in making the payments to Contractor. Should any liens or claims of lien be filed of record against the Property, or should Contractor receive notice of any unpaid bill or charge in connection with construction of the Project, Contractor shall immediately either pay and discharge the same and cause the same to be released of record, or shall furnish City with the proper indemnity either by title policy or by corporate surety bond in the amount of 150% of the amount claimed pursuant to such lien. 6. Releases. Contractor shall, if requested by City, before being entitled io receive any Payment due, fiimish to City all releases obtained from subcontractors and material suppliers and copies of all bills paid to such date, properly receipted and identified, covering work done and the materials furnished to the Project and showing an expenditure of an amount not less than the total of all previous payments made hereunder by City to Contractor. 7. Itierarehy of Project Documents. This Contract and the Proposal or Scope of Work appended hereto as Exhibit "A" are intended to supplement one another. In case of conflict, however, this Contract shall control both. 8. Changes in the Work. Should the City at any time during the progress of the work request any modifications, alterations or deviations in, additions to, or omissions from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the same shall in no way affect or make void this Contract; but the amount thereof shall be amortized over the remaining term of this Contract and added to or deducted, as the case may be, from the payments set forth in Paragraph 3 above by a fair and reasonable valuation, based upon the actual cost of labor and materials. This Contract shall be deemed to be completed when the work is finished in accordance with the original Proposal or Scope of Work as amended or modified by such changes, whatever may be the nature or the extent thereof. The rule of practice to be observed in fulfillment of this paragraph shall be that, upon the demand of either City or Contractor, the character and valuation of any or all changes, omissions or extra work shall be agreed upon and fixed in writing, Signed by City and Contractor, prior to performance. 9. Contractor's Failure to Perform. Should Contractor, at any time during the progress of the work, refuse or fail to supply sufficient material or workmen for the expeditious progress of said work or fail to perform any other provisions of this Contract, City may, upon giving notice in writing to Contractor as provided herein and upon Contractor's failure to remedy any such failure within 3 days from receipt of such notice, terminate this Contract and provide the necessary material and workmen to finish the work and may enter upon the Property for such purpose and complete said work. The expense thereof shall be deducted from the payments remaining under Paragraph 3 above, or if the total cost of the work to City exceeds the amount of such remaining payments, Contractor shall pay to City upon demand the amount of such excess in addition to any and all other damages to which City may be entitled. In the event of such termination, City may take possession of all materials, equipment and appliances belonging to Contractor upon or adjacent to the Property upon which said work is being performed and may use the same in the completion of said work. Such termination shall not prejudice or be exclusive of any other legal rights which City may have against Contractor. 10. Extension of Time for Completion. Time is of the essence of this Contract and Contractor shall substantially complete the work during the time provided for herein2 However, the time during which Contractor is delayed in said work by (a) the acts of City or its agents or employees or those claiming under Contract with or permission from City, or (b) the acts of God which Contractor could not have reasonably foreseen and provided against, or (c) unanticipated stormy or inclement weather which necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by employees or labor organizations and which are beyond the control of Contractor and which it cannot reasonably overcome, or (e) the failure of City to make progress payments promptly, shall be added to the time for completion of the work by a fair and reasonable allowance. Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a high elevation where inclement whether conditions are common. This fact has been considered by Contractor in preparing its Proposal and or agreeing to the Scope of Work. Furthermore, Contractor shall have the right to stop work if any payment, including payment for extra work, is not made to Contractor as provided in this Contract. In the event of such nonpayment, Contractor may keep the job idle until all payments then due are received. 11. Unforeseen Conditions. It is understood and agreed that Contractor, before incurring any other expenses or purchasing any other materials for the Project, shall proceed to inspect the work site and all visible conditions and that if, at the time of inspection therefor, the Contractor finds that the proposed work is at variance with the conditions indicated by the Proposal, Scope of Work, or information supplied by City, or should Contractor encounter physical conditions below the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so notify City, and City shall at that time have the right and option to immediately cancel and terminate this Contract or to instruct Contractor to continue the work and add the additional amount attributable to such unforeseen conditions to the payments due Contractor as set forth above. It is agreed that in the event of any cancellation by City in accordance with this section, Contractor shall be paid the actual costs of the work done prior to the time of cancellation. In computing such costs, building permit fees, insurance and such financing and title charges as are not refundable shall be included; provided that supervision time, office overhead and profit shall not be included in such costs to be refunded to Contractor by reason of such cancellation. 12. Acceptance by City. NO p~6ht hereUnder nor occupancy of said improvements or any part thereof shall be construed as an acceptance of any work done up to the time of such payment or occupancy, but the entire work is to be subject to the inspection and approval of City at the time when Contractor notifies City that the Project has been completed. 13. Notice of Completion; Contractor's Release. City agrees to sign and file of record within five (5) days after the substantial completion and acceptance of the Project a Notice of Completion. If City fails to so record the Notice of Completion within said five (5) day period, City hereby appoints Contractor as City's agent to sign and record such Notice of Completion on City's behalf. This agency is irrevocable and is an agency coupled with an interest. Contractor agrees upon receipt of final payment to release the Project and property from any and all claims that may have accrued against the same by reason of said construction. If Contractor faithfully performs the obligations of this Contract on its part to be performed, it shall have the fight to refuse to permit occupancy of any structures .by City or City's assignees or agents Until the Notice of Completion has been recorded and Contractor has received the payment, if any, due hereunder at completion of construction, less such amounts as may be retained pursuant to mutual Contract of City and Contractor under the provisions of Paragraph 3 above. 14. Insurance. a. The Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the terms of this Contra/t by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. b. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insmance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 1. 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 ONE HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident, ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - policy limit, and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. 2. Commercial General Liability insurance with minimum combined single limits of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) each occurrence and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) 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. 3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) each occurrence and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) aggregate with respect to each Cofitractor'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. c. Except for any Professional Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City o£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 carded 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 exclusionTor bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. d. The certificate of insurance provided by the City of Aspen shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (,30) days prior written notice has been given to the City of Aspen. e. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above- described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the mount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered to the Archiiect at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Contract or thereafter. e. 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. f. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 15. Damage or Destruction. If the Project is destroyed or damaged by any accident or disaster, such as fn:e, storm, flood, landslide, earthquake, subsidence, theft or vandalism, any work done by Contractor in rebuilding or restoring the work shall be p/fid for by City as extra work under Paragraph 8 above. If, however, the estimated cost of replacement of the work already completed by Contractor exceeds twenty (20%) percent of the insured sum set forth in Paragraph 14 above, City shall have the option to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost, including net profit to Contractor in the amount of ten (10%) percent, of all work performed by Contractor before such cancellation. 16. Notices. Any notice which any party is required or may desire to give to any other party shall be in writing and may be personally delivered or given or made by United States mail addressed as follows: To City: Rebecca Weibel-Hodgson, Purchasing Officer City of Aspen Parks and Recreation Department 130 South Galena Street Aspen, Colorado 81611 To Contractor: Terry Ostrom, General Manager B.T.E. Concrete Formwork, LLC P.O. Box 1944 Glenwood Springs, CO 81602 subject to the right of either party to designate a different address for itself by notice similarly given. Any notice so given, delivered or made by United States mail, shall be deemed to have been given the same day as transmitted by telecopier or delivered personally, one day after consignment to overnight courier service such as Federal Express, or two days after the deposit in the United States mail as registered or certified matter, addressed as abov6 provided, with postage thereon fully prepaid. 17. Inspections; Warranties. (a) Contractor shall conduct an inspection of the Project prior to final accei~tance of the work with City. (b) Contractor shall schedule and cause to be performed all corrective activities necessitated as a result of any deficiencies noted on the final inspection prior to acceptance. The costs of material and/or labor incurred in connection with such corrective activities shall not be reimbursed or otherwise paid to Contractor. (c) Contractor shall obtain, at City's expense, third party warranty contracts (to be entered into by City). 18. Licensure of Contractor. Contractor hereby represents and warrants to City that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Pitkin. 19. Independent Contractor. It is expressly acknowledged and understood by the parties that nothing in this Contract shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available fi:om the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract. THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFIT'S AND' SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 20. Assignment. This Contract is for the personal services of Contractor. Contractor shall not transfer or assign this Contract or its rights and responsibilities under this Contract nor subcontract to others its rights and responsibilities under this Contract, and any attempt to do so shall be void and constitute a material breach of this Contract. 21. Successors and Assigns. Subject to paragraph 22, above, this Contract shall be binding on, and shall inure to the benefit of, City and Contractor and their respective successors and assigns. 22. Entire Contract. This Contract contains the entire Contract between City and Contractor respecting the matters set forth herein and supersedes all prior Contracts between City and Contractor respecting such matters. 23. Waivers. No waiver by City or Contractor of any default by the other or of any event, circumstance or condition permitting either to terminate this Contract shall constitute a wai,ver of any other default or other such event, circumstance or condition, whether of the same or of any otheP nature or type and whether preceding, concurrent or succeeding; and no failure or delay by either City or Contractor to exercise any right arising by reason of any default by the other shall prevent the exercise of such right while the defaulting party continues in default, and no waiver of any default shall operate as a waiver of any other default or as a modification of this Contract. 24. Remedies Non-Exclusive. No remedy conferred on either party to this Contract shall be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy. 25. Governing Law. This Contract shall be governed by, and construed in accordahce with, the laws of the State of Colorado. Venue for any action at law or equity shall be Pitkin County. 26. Attorneys' Fees. If either party to this Contract shall institute any action or proceeding to enforce any right, remedy or provision contained in this Contract, the prevailing party in such action shall be entitled to receive its attorneys' fees in connection with such action from the non-prevailing party. 27. Severability. Any provision in this Contract which is held to be inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid without affecting the remaining provisions, and to this end the provisions of this Contract are declared to be severable. 28. Nondiscrimination. During the performance of this Contract, the Contractor agrees as follows: The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or 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 to be provided setting forth the provisions of this nondiscr- imination clause. 29. Prohibited Interest. No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in this Contract or the proceeds thereof. 30. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: a. The Contractor warrants that no person or selling agency has been einployed or retained to solicit or secure this Contract upon an Contract or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. b. The Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Contract or to any solicitatioff or proposal therefor. c. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an inducement for the award of a Subcontract or order. The Contractor is prohibited frOm inducing, by any means, any person employed under this Contract to give up any part of 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. 31. Payments Subject to Annual Appropriations. If the contract awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated to provide services or materials for which funds have not been appropriate. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. ATTESTED BY: Title: CITY OF ASPEN, COLORADO By: ~~,~~ RECOMMENDED FOR APPROVAL: City APPROVED AS TO FORM: Cinder' ATTESTED BY: 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. CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF ) )SS. COUNTY OF ) On this day of ,20 , before me appeared , to me personally known, who, being by me first duly sworn, did say that s/he is of and that the seal affixed to said instrument is the corporate seal of said corporation,, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said deponent acknowledged Said instrument to be the free act and deed of said corporation. WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above written. Notary Public My commission expires: Address