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HomeMy WebLinkAboutresolution.council.034-07 RESOLUTION NO. 3:1- Series of 2007 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR IMPLEMENTATION OF ENERGY EFFICIENCY PROJECTS IN THE ASPEN RECREATION CENTER, BETWEEN THE CITY OF ASPEN AND LONG BUILDING TECHNOLOGIES, 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 implementation of energy efficient projects for the Aspen Recreation Center, between the City of Aspen and Long Building Technologies, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that Contract for implementation of energy efficient projects for the Aspen Recreation Center, between the City of Aspen and Long Building Technologies, 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 Aspen on the d day of +007. I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. C:\Documents and Settings\tima.ASPENPITKIN\Local Settings\Temporary Internet Files\OLK3D\ARC energyefficient.doc THE CITY OF ASPEN SPECIAL CONDITIONS for LONG BUILDING TECHNOLOGIES Project No. 1.0 GENERAL: 1.01 Clarification of Terms: These Special Conditions are intended to specify and provide additional description, clarification, or conditions that are applicable to the Contract Agreement between the City of Aspen and Long Building Technologies. These Special Conditions amend or supplement the Contract Agreement and other provisions of the Contract Documents as indicated below. All provisions which are not so amended or supplemented remain in full force and effect. 2.0 PROJECT ENGINEER AND THE CITY'S REPRESENTATIVE: The Project Engineer and the City's Representative for this project shall be a member of the City Recreation Department staff and shall be designated and changed as necessary by the City. Unless provided in writing by the City, anyon-site Inspector or Representative of the City shall not have the authority to render any binding decision nor make any binding judgments to the Contractor pertaining to any work which may change the Contract price or time of completion, or change the quality of Work, or change the manner in which the Work is being performed. The Project Engineer and the City's Representative shall serve as a means of communication between the City and the Contractor and shall monitor the Work for the City. All references in the Contract Documents to "Project Engineer" and "City's Representative" shall refer to the Project Engineer and the City's Representative named by the City. 3.0 MANDATORY PRE-CONSTRUCTION CONFERENCE & WEEKLY PROGRESS MEETINGS: A pre-construction conference shall be held within Seven (7) Consecutive Calendar Davs after the Award of Bid by the City Council. The purpose of such meeting shall be to explain and coordinate, as required, to the Contractor, the requirements of the Contract Documents, the procedures to be used in the administration of the Contract, and to discuss any item of concern to the work. The Contractor and City Engineer, or authorized representative of each, shall be required to attend such meeting as a condition of the Contract. The time and the day for Mandatory Weeklv Proaress Meetinas shall be scheduled at the pre-construction conference. 4.0 PROGRESS SCHEDULE AND SEQUENCE OF OPERATIONS: 4.01 Within seven (14) days of the date of the bid award by the City Council, and prior to the pre-construction conference, the Contractor shall submit for review of the City Engineer a critical-path chart showing the estimated progress for the component divisions of the Work and a balanced time breakdown, showing the estimated progress schedule for the entire Project. For purposes of comparison, the Contractor shall submit with each progress pay estimate a form showing the actual rate of progress to date for the component divisions and for the Project as a whole. The actual rate of progress shown on the form shall only include Work completed and shall not include stored materials. 4.02 In the event that the rate of actual progress of the Work falls behind the estimated progress indicated on the approved critical-path chart and in the absence of time extensions if any granted by the City, the Contractor shall accelerate the Work by placing additional forces and equipment on the Project so that the Project will be completed within the Contract Time. The Contractor shall be capable and make available more than one work crew to perform the work on time. 4.03 The Contractor shall provide a list of emergency (24 hour) contact name(s), addresses and phone numbers for the Contractor to the City Engineer within 48 hours of the pre-construction conference. In addition, the Contractor shall provide a list of emergency contact name(s), addresses and phone numbers for each subcontractor within 5 days of their achieving contracted status. Emergency phone calls must be responded to in 15 minutes or less and action must be taken on the emergency condition immediately. The City's Representative shall provide to the Contractor and its subcontractors a provide list of emergency (24 hour) contact name(s), addresses and phone numbers of local vendors and service agencies that the City's Representative currently uses or would approve using for services at the facility. Such emergency calls shall be project related corrective and restorative work and shall be considered subsidiary to the construction bid items and at the Contractor's cost. The City's Representative shall make a good faith effort to take temporary remedial actions pending Contractor's response. The Owner may initiate such corrective work at Contractor's cost if the Contractor fails to perform the required task within two hours of an emergency call. 5.0 PROTECTION OF PUBLIC FACILITIES, UTILITIES AND OTHER ADJOINING PROPERTY: The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury, or loss to other property at the site or adjacent thereto, and he shall be liable for any and all claims for such damage on account of his failure to fully provide such protection. The Contractor shall notify all public utility companies at least forty-eight (48) hours prior to commencement of any Work in the vicinity of the utilities. No Work shall commence until the utilities have been located and marked by the utility company. If utility service must be interrupted, the Contractor shall coordinate with the respective utility provider at least forty-eight (48) hours prior to interruption. Notice shall consist of publication in a local newspaper and/or announcement on local radio stations as determined by the City Engineer. 6.0 DAMAGE TO CONSTRUCTION: The Contractor shall safeguard, until all Work embraced by the Contract is formally accepted, all construction, both complete and incomplete, against damage and destruction, and should damage result, he will be required to reconstruct at his expense in a manner conforming to the Plans and Specifications, reconstruction shall be in a manner suitable to the City. No repair or mitigating option for damaged Work will be accepted by the City. 7.0 JOB SITE RESTRICTIONS: All materials to be removed from the project site or demolished on site, shall be disposed of by the Contractor off the project site unless requested otherwise by the City Engineer. 8.0 WORKING HOURS: Work will normally be permitted between 6:00 a.m. and 7:00 p.m.; other work hours must be approved by the City in writing. Work will be permitted on Saturday and Sunday, except that 48 hours prior written notice to the City shall be required to allow notification of the public. 9.0 SUBCONTRACTORS AND SUPPLIERS: Contractor shall identify the name and address all Subcontractors, Suppliers, and other persons or organizations that will furnish the principal items of materials, equipment or labor for this project. 10.0 CONTRACT CLOSE-OUT: Upon completion of all punch list item(s) from the final inspection by the City and submittal of a fully executed Claim Release form by the Contractor, the City will advertise twice in the newspaper, and following a Thirtv (30J Consecutive Calendar Dav waiting period, and with no verified claim against the Contractor by the City up until the end of this waiting period, the City will declare the project closed and will release the retainage to the Contractor. 11.0 WARRANTY INSPECTION: At the City's discretion, a warranty inspection will be held during sixty (60) calendar days prior to the expiration of the warranty period. The Contractor shall provide an authorized representative at such inspection to represent the Contractor's interests. All defects identified during inspection shall be corrected at Contractor's expense at the direction of the City immediately. Corrective Work shall be commenced within five (5) consecutive calendar days after written notice to Contractor. 12.0 CONTRACT DOCUMENTS AND THEIR PRECEDENCE: The Contract Documents shall be as follows in their order of precedence: 1. Addenda, if any. 2. Change Orders, if any. 3. Drawings, if any. a. Detailed Drawings. b. Standard Drawings. 4. Special Conditions. 5. Contract Agreement. 6. Technical Specifications. 12.1 PERFORMANCE AND PAYMENT BONDS: 12.1.1. Contractor shall furnish performance and payment Bonds, each in an amount specified herein 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 as otherwise provided by the Contract Documents. 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. 12.1.2. 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 15.1, Contractor shall within five days thereafter substitute another Bond and Surety, both of which must be acceptable to the City. 13 APPLICATION FOR PROGRESS PAYMENT: 13.1. 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 City, 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 this Agreement. The amount of the progress estimate to be paid to the Contractor shall be subject to the following: 13.1.1 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 City may, at his/her discretion, reduce the retained amount by fifty percent (50%) of the required retainage. b) Upon one hundred percent (100%) completion and acceptance of the project, the City 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. 13.2. 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. 13.3. 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 City. 13.4. 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: 13.4.1. 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; 13.4.2. 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 30 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 30 days of receipt of payment from the next higher tier. 14 SETTLEMENT DATE, NOTICE TO SUBCONTRACTORS, ACCEPTANCE AND FINAL PAYMENT: If, on the basis of the City's observation of the Work during construction and final inspection, and the City's review of the final progress Payment and accompanying documentation - all as required by the Contract Documents, the City's Representative represents to the City that the Work has been completed and the City is satisfied that the Work has been completed and the Contractor's other obligations under the Contract Documents have been fulfilled, the City shall cause to be published on two (2) consecutive weeks in the weekly editions of the Aspen Times, a public notice setting a final settlement date; which said settlement date shall be at least ten (10) days after the second publication. Said notice shall advise all persons, co-partnerships, associations of persons, companies, or corporations that have furnished labor, provisions, materials, team hire, sustenance, or other supplies used or consumed by Contractor or his SUbcontractor(s), that they may file a claim with the City, at any time up to and including the time of final settlement. Upon filing of any such claim, the City shall withhold from retainment withheld in accordance with the Contract Documents, to insure the payment of said claims until the same have been paid or such claims as filed have been withdrawn, such payment or 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 days following the date fixed for final settlement as published unless an action is commenced within that time to enforce such unpaid claim and a notice of Lis Pendens is filed with the City. At the expiration of such ninety day period, the City shall pay to Contractor such moneys and funds as are not subject of suit and Lis Pendens notices and shall retain thereafter, subject to the final outcome thereof, only such balance of funds to insure the payment of judgments which may result from such suit. 14.2. If, the remaining balance to be held by the City for Work not fully completed or corrected is less than the retainage set forth above, and if Bonds have been furnished as required, 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 City. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 15 Indemnification: The Contractor agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage which arise out of or are in any manner connected with this contract, to the extent that such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Contractor, any Subcontractor of the Contractor, or any officer, employee, representative, or agent of the Contractor or of any Subcontractor of the Contractor, or which arises out of any workmen's compensation claim of any employee of the Contractor or of any employee of any Subcontractor of the Contractor. The Contractor agrees to investigate, handle, respond to, and provide defense for and defend against, any such liability, claims or demands at the sole expense of the Contractor, or at the option of the City, agrees to pay the City or reimburse the City for the reasonable defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Contractor for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 16 Contractor's Insurance: 16.1. 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 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 18 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. 16.2. Except for any Professional Liability insurance that may be required, the Contractor shall procure and maintain, and shall cause any Subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Special Conditions. Contractor shall also shall cause any professional design engineering Subcontractor of the Contractor to procure and maintain Professional Liability insurance with the minimum insurance coverages listed in the Special Conditions. 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 18 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. 16.2.1. Worker's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and 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 Worker's Compensation requirements of this paragraph. 16.2.2. 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 contain a severability of interests provision. 16.2.3. 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. 16.2.4 Property Insurance upon the Construction at the site in an amount equal to the full replacement cost thereof and to include, at a minimum, the interests of the City, Contractor and subcontractors each of whom shall be considered to have an insurable interest and shall be listed as additional insureds; be written on a Builder's Risk "all-risk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss and damage to the Construction, temporary buildings, false work and all materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage, and such other perils or causes of loss as may be specifically required by the Special Conditions; said coverage to also include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); and shall also include coverage to cover materials and equipment stored at the Site or at another location that was agreed to in writing by City prior to being incorporated in the Work, provided such materials and equipment have been included in an Application for payment approved by the City; and shall be maintained in effect until final payment is made. 16.2.5. Professional Liability Insurance with minimum limits of not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) each claim and in the aggregate. 16.3. Except for any Professional Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or employees, or carried by or provided through any insurance pool of the City of 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. 16.4. The certificate of insurance provided by the City of Aspen shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City of Aspen. 16.5. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above- described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy.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.and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered to the City 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. 16.6. 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. 16.7. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 17. CITY'S LIABILITY INSURANCE: 17.1. 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. 17.2. 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. 18. SUPERSISION AND SUPERINTENDENCE: 18.1. The Contractor shall supervise and direct the Work competently and efficiently devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. The Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. The Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents. 18.2. The Contractor shall keep on the Work at certain times as agreed to between the Contractor and the City's Representative during its progress a competent superintendent, who shall not be replaced without written notice to the City 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. The Contractor may appoint a representative of a subcontractor to act as the superintendent. 19. 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 from Federal Excise Tax under Chapter 32 of the Internal Revenue Code. The City is exempt from 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. 20. lIIeaal Aliens - CRS 8-17.5-101 & 24-76.5-101. 20.1. Puroose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. 20.2. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Contract. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. 20.3. By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. 20.4. Contractor hereby certifies that: (i) Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (Ii) Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (iii) Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Contractor shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (1) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.RS. (vii) If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.RS. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8-17.5-102, C.RS. (ix) If Contractor operates as a sole proprietor, Contractor hereby swears or affirms under penalty of perjury that the Contractor (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 21. 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 Agreement. 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 AGREEMENT. 22. 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. 23. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. 23.1. 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 Agreement or to any solicitation or proposal therefor. 23.2. It shall be a material breach of the Agreement 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 Agreement 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. 24. Payments Subject to Annual Appropriations: If the Agreement 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 Agreement is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated to provide services or materials for which funds have not been appropriated. 25. Contract Made in Colorado The Parties agree that this Agreement 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. IN WITNESS WHEREOF, the parties agree hereto have executed these Special Conditions on the date set forth in the Contract Agreement. A7Z~ I ~c~ CITY OFct~ COLORADO , ~ By: ~ !i ~~..Y Title: C.,-1'~ ^~ / RECOMMENDED FOR APPROVAL: APPROVED AS TO FORM: By: ~/7~ orne ATTESTED BY: CONTRACTOR: !'! By: ( ti-dr9/~ Title: v{J Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Agreement shall be signed by a Principal and indicate title. LONG LONG BUILDING TECHNOLOGIES CONTRACT AGREEMENT THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSUL TA TlON WITH AN A TTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICA TlON. AGREEMENT was made as of the 30th day of April in the year of 2007 BETWEEN the Owner: City of Aspen Recreation Center 0861 Maroon Creek Rd. Aspen, CO 81611 and the Contractor: LONG Building Technologies, Inc. 1795 W Yale Ave Englewood, CO 80110 The Mechanical Consultant The Ballard Group is: For the following Project: Energy Infrastructure Improvements Project The Owner and the Contractor agree as set forth in this agreement. 1 Casper:fJl. 265.5997. Colorado Springs 719.592.0364. Derwer 303.9752100. Las Vegas 702.740.5100. Salt L3ke City 801 A87.0lDl TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ARTICLE 1 THE CONTRACT DOCUMENTS 1.1 The Contract Documents consist of (1) this Agreement, Drawings, Specifications, Addenda issued prior to execution of the Agreement between the Owner and Contractor, (2) other documents listed in Article 16 of this Agreement; and (3) Modifications to this Contract issued after execution of this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modifications issued subsequent to the execution of this Agreement, appears in Article 16. ARTICLE 2 MUTUAL RIGHTS AND RESPONSIBILITIES 2.2 The Owner may require the Contractor to enter into agreements with Subcontractors performing portions of the Work of this Contract by which the Contractor and the Subcontractor are mutually bound, to the extent of the work to be performed by the Subcontractor, assuming toward each other all obligations and responsibiltties which the Owner- Contractor assume toward each other and having the benefit of all rights, remedies and redress each against the other which the Owner and Contractor have by virtue of the provisions of this Agreement. ARTICLE 3 OWNER 3.1 SERVICES PROVIDED BY THE OWNER 3.1.1 The Owner shall cooperate with the Contractor in scheduling and performing the Owner's Work to avoid conflicts or interference in the Contractor's Work and shall expedite written responses to submittals made by the Contractor in accordance with Paragraph 4.1 and Article 5. The Contractor and Owner shall work to develop a mutual acceptable construction schedule. The Contractor shall be notified promptly of subsequent changes in the construction and submittal schedule requirements and additional scheduling details. 3.1.2 The Owner shall attempt to provide suitable areas for storage of the Contractor's materials and equipment during the course of the Work. 3.1.3 Except as provided in Article 14, the Owner's equipment will be available to the Contractor only at the Owner's discretion and on mutually satisfactory terms. 3.2 COMMUNICATIONS 3.2.1 The Owner shall promptly make available to the Contractor information which affects this Contract and which becomes available to the Owner subsequent to execution of this Contract. 3.2.2 The Owner shall not give instructions or orders directly to employees or workmen of the Contractor, except to persons designated as authorized representatives of the Contractor. 3.2.3 If hazardous substances of a type of which an employer is required by iaw to notify its employees are being used on the site by the Owner, a contractor or anyone directly or indirectly employed by them (other than the Contractor), the Owner shall, prior to harmful exposure of the Contractor's employees to such a substance, given written notice of the chemical composition thereof to the Contractor in sufficient detail and time to permit the Contractor's compliance with such laws. 3.3 CLAIMS BY THE OWNER 3.3.1 Liquidated damages for delay, if provided for in Paragraph 9.3 of this Agreement, shall be assessed against the Contractor only to the extent caused by the Contractor, the Contractor's employees and agents, Subcontractors, suppliers or any person or entity for whose acts the Contractor may be liable, and in no case for delays or causes arising outside the scope of this Contract. 3.3.2 Except as may be indicated in this Agreement, the Owner agrees that no claim for payment for services rendered or materials and equipment fumished by the Owner to the Contractor shall be valid without prior notice to the Contractor and unless written notice thereof is given by the Owner to the Contractor not later than the tenth day of the calendar month following that in which the claim originated. The Contractor reserves the right to dispute claims so presented. 2 Casper 3fJ7. 265.5997 . Colorado Springs 719.592.0364. Denver 303.975.2100. Las Vegas 702.740.5100. Salt Lake City 801A87.08C6 3.4 OWNER'S REMEDIES 3.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with this Agreement and fails within 10 working days after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, after 5 working days following receipt by the Contractor of an additional written notice, and without prejudice to any other remedy the Owner may have, make good such deficiencies and may deduct the cost thereof from the payments then or thereafter due the Contractor. ARTICLE 4 CONTRACTOR 4.1 EXECUTION AND PROGRESS OF THE WORK 4.1.1 The Contractor shall cooperate with the Owner in scheduling and perfonning the Contracto~s Work to avoid conflict, delay in or interference with the Work ofthe Owner, other subcontractors or Owne~s own forces. 4.1.2 The Contractor shall promptly submit Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or other subcontractors. 4.1.3 The Contractor shall submit to the Owner a schedule of values allocated to the various parts of the Work of this Contract, aggregating the Contract Sum, made out in such detail as the Owner and Contractor may agree upon or as required by the Owner, and supported by such evidence as the Owner may direct. In applying for payment, the Contractor shall submit statements based upon this schedule. 4.1.4 The Contractor shall furnish to the Owner periodic progress reports on the Work of this Contract as mutually agreed, including infonnation on the status of materials and equipment which may be in the course of preparation or manufacture. 4.1.5 The Contractor agrees that the Owner will have the authority to reject Work which does not confonn to this Contract. 4.1.6 The Contractor shall pay for materials, equipment and labor used in connection with the perfonnance of this Contract through the period covered by previous payments received from the Owner, and shall fumish satisfactory evidence, when requested by the Owner, to verify compliance with the above requirements. 4.1.7 The Contractor shall coordinate precautions necessary to properly protect the Work of other subcontractors from damage caused by operations under this Contract. 4.1.8 The Contractor shall coordinate with the Owner, other subcontractors and Owne~s own forces whose Work might interfere with the Contracto~s Work. The Contractor shall participate in the preparation of coordinated drawings in areas of congestion, specifically noting and advising the Owner of potential conflicts between the Work of the Contractor and that of the Owner, other subcontractors or the Owne~s own forces. 4.2 LAWS, PERMITS, FEES AND NOTICES 4.2.1 The Contractor shall give notices and comply with laws, ordinances, rules, regulations and orders of public authorities bearing on perfonnance of the Work of this Contract. The Contractor shall secure and pay for penn its and governmental fees, licenses and inspections necessary for proper execution and completion of the Contracto~s Work, the furnishing of which is required by the Owner. 4.2.2 The Contractor shall comply with Federal, state and local tax laws, social security acts, unemployment compensation acts and workers' or workmen's compensation acts insofar as applicable to the perfonnance of this Contract. 4.3 SAFETY PRECAUTIONS AND PROCEDURES 4.3.1 The Contractor shall take reasonable safety precautions with respect to perfonnance of this Contract, shall comply with safety measures initiated by the Owner and with applicable laws, ordinances, rules, regulations and orders of public authorities for the safety of persons or property in accordance with the requirements of OSHA. The Contractor shall report to the Owner within three days an injury to an employee or agent of the Contractor which occurred at the site. 4.3.2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by the Contractor, the Contracto~s Subcontractors or anyone directly or indirectly employed by them, the Contractor shall, prior to harmful exposure of any employees on the site to such substance, give written notice of the chemical composition thereof to the Owner in sufficient detail and time to permit compliance with such laws by the Owner, other subcontractors and other employers on the site. 4.3.3 In the event the Contractor encounters on the site material reasonably believed to be asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless, the Contractor shall immediately stop Work in the area affected and report the condition to the Owner in writing. The Work in the affected area shall resume in the absence of asbestos or polychlorinated biphenyl (PCB), or when it has been rendered hannless per OSHA and EPA requirements and confirmed, by written agreement of the Owner and Contractor, or by arbitration as provided in this Agreement. The Contractor shall not be required pursuant to Article 5 to perform without consent any Work relating to abatement or removal of asbestos or polychlorinated biphenyl (PCB). The Owner will then be responsible for all demobilization and remobilization on site associated with stoppages caused by encountering these materials. 3 Casper?m. 265.5997 . Colorado Springs 719.592.0364. Denver 303.9752100. Las Vegas 702.740.5100. Salt lake aty 801.487.0800 4.3.4 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, the Contracto(s Subcontractors, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Work in the affected area if in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction to tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Owner or anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Subparagraph 4.3.4. 4.4 CLEANING UP 4.4.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations performed under this Contract. The Contractor shall not be held responsible for unclean conditions caused by other contractors or subcontractors not under its hire. 4.5 WARRANTY 4.5.1 The Contractor warrants to the Owner that materials and equipment furnished under this Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work of this Contract will be free from defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Contract Documents. This warranty is in affect for a period of 1 year from acceptance or beneficial use whichever comes first. Work not conforming to these requirements, including substitutions not property approved and authorized, may be considered defective. The Contracto(s warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. This warranty shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents. 4.6 INDEMNIFICATION 4.6.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, and agents and employees of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from performance of the Contracto(s Work under this Contract, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, the Contracto(s Sub-contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. Such obligation shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 4.6. 4.6.2 In claims against any person or entity indemnified under this Paragraph 4.6 by an employee of the Contractor, the Contracto(s Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 4.6 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or the Contractor's Subcontractors under workers' or workmen's compensation actions, disability benefit acts or other employee benefit acts. 4.6.3 The obligations of the Contractor under this Paragraph 4.6 shall not extend to the liability of the agents and employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the Owner, consultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage. 4.7 REMEDIES FOR NONPAYMENT 4.7.1 If the Owner does not pay the Contractor through no fault of the Contractor, within 45 days from the time frame payment should be made as provided in this Agreement in Article 7, the Contractor may, without prejudice to other available remedies, upon seven additional days' written notice to the Owner, stop the Work of this Contract until payment of the amount owing has been received. The Owner will then be responsible for all demobilization and remobilization costs once payments have been made. ARTICLE 5 CHANGES IN THE WORK 5.1 The Owner may make changes in the Work by issuing Modifications to the Contract. Upon receipt of such a Modification issued subsequent to the execution of the Contract Agreement, the Owner shall promptly notify the Contractor of the Modification within five working days of the change. Unless otherwise directed by the Owner, the Contractor shall not thereafter order materials or perform Work which would be inconsistent with the changes made by the Modifications to the Contract. 4 Casper ~. 265.5997 . Colorado Springs 719.592.0364. Denver 303.975.2100. Las Vegas 702.740.5100. Salt Lake Oty 801.487.08lIl 5.2 The Contractor may be ordered in writing by the Owner, without invalidating this Contract, to make changes in the Work within the general scope of this Contract consisting of additions, deletions or other revisions, including those required by Modifications to the Prime Contract issued subsequent to the execution of this Agreement, the Contract Sum and the Contract Time being adjusted accordingly. The Contractor, prior to the commencement of such changed or revised Work, shall submit promptly to the Owner written copies of a claim for adjustment to the Contract Sum and Contract Time for such revised Work in a manner consistent with requirements of the Contract Documents. Such claims shall be reviewed and approved by the Owner no less than 5 working days preceding the time by which the Contracto~s work must begin. ARTICLE 6 ARBITRATION 6.1 Any controversy or claim between the Owner and the Contractor arising out of or related to this Contract, shall be resolved in accordance with the Construction Industry Arbitration Rules of the American Association currently in effect unless the parties mutually agree otherwise. 6.2 Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to the Contract shall include, by consolidation or joined or in any other manner, any person or entity not a party to the Agreement under which such arbitration arises, unless it is shown at the time the demand for arbitration is filed that (1) such person or entity is substantially involved in a common question of fact or law, (2) the presence of such person or entity is required if complete relief is to be accorded in the arbitration, (3) the interest or responsibility of such person or entity in the matter is not insubstantial, and (4) such person or entity is not the Owner or an employee or agent of any of them. This agreement to arbitrate and any other written agreement to arbitrate with an additional person or persons referred to herein shall be specifically enforceable under applicable law in any court having jurisdiction thereof. 6.3 The Owner shall give the Contractor prompt written notice of any demand received or made by the Owner for arbitration if the dispute involves or relates to the Work, materials, equipment, rights or responsibilities of the Contractor in the arbitration proceeding whether by joined, consolidation or otherwise, if the Contractor requests in writing to be included within ten days after receipt of the Contracto~s notice. 6.4 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. 6.5 This Article 6 shall not be deemed a limitation of rights or remedies which the Contractor may have under Federal law, under state mechanics' lien laws, or under applicable labor or material payment bonds unless such rights or remedies are expressly waived by the Contractor. ARTICLE 7 TERMINATION, SUSPENSION OR ASSIGNMENT OF THE CONTRACT 7.1 TERMINATION BY THE CONTRACTOR 7.1.1 The Contractor may terminate the Contract if the Owner has not paid the Contractor for work within 45 days of the receipt of invoice by Owner. In the event of such termination by the Contract for any reason which is not the fault of the Contractor, Subcontractors or their agents or employees or other persons performing portions of the Work under contract with the Contractor, the Contractor shall be entitled to recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, demobilization, remobilization, restocking and construction equipment and machinery expenses, including reasonable overhead, profrt and damages. 7.2 TERMINATION BY THE OWNER 7.2.1 If the Contractor fails or neglects to carry out the Work in accordance with the Contract Documents or otherwise to perform in accordance with this Agreement and falls within 10 working days after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, after 5 working days following receipt by the Contractor of an additional written notice and without prejudice to any other remedy the Owner may have, terminate the Contract and finish the Contracto~s Work by whatever method the Owner may deem expedient. If the unpaid balance of the Contract Sum exceeds the expense of finishing the Contracto~s Work, such excess shall be paid to the Contractor. 7.3 ASSIGNMENT OF THE CONTRACT 7.3.1 The Contractor shall not assign the Work of this Contract without the written consent of the Owner, nor contract the whole of this Contract without the written consent of the Owner, nor further contract portions of this Contract without written notification to the Owner when such notification is requested by the Owner. 5 Casper 307. 265.5997 . Colorado Springs 719.592.0364. Denver 303.9752100. Las Vegas 702.740.5100. Salt Lake Ci1y 001.487.??oo ARTICLE 8 THE WORK OF THIS CONTRACT 8.1 The Contractor shall execute the following portion of the Work described in the Contract Documents, including all labor, materials, equipment, services and other ttems required to complete such portion of the Work, except to the extent specifically indicated in the Contract Documents to be the responsibility of others: Building improvements as described by progress drawings, plans, and project specifications for the implementation of energy savings measures and accommodation of future building expansion and listed in Table 2.1 attached (revised 4/23/2007), ECM#s: 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10,6.11,6.12,6.13,6.14,6.15,6.16,6.17,6.18,6.20, 6.21,6.22, and 6.24. ARTICLE 9 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 9.1 The Contracto(s date of commencement is the date from which the Contract Time of Paragraph 9.3 is measured; it shall be the date of this Agreement, as first written above, unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. 9.2 Unless the date of commencement is established by a notice to proceed issued by the Owner, or the Owner has commenced visible Work at the site, the Contractor shall notify the Owner in writing not less than five days before commencing the Contracto(s Work to permtt the timely filing of mortgages, mechanic's liens and other security interests. 9.3 The Work of this Contract shall be substantially completed not later than December 31, 2007 subject to adjustments of this Contract Time as provided in the Contract Documents. 9.4 Time is of the essence of this Contract. 9.5 No extension of time will be valid without the Owne(s written consent after claim made by the Contractor in accordance with Paragraph 5.2. 6 Casper 307. 265.5997 . Colorado Springs 719.592.0364. Denver 303.975.2100. Las Vegas 702.740.5100. Salt Lake City 001 A87.0ll08 ARTICLE 10 CONTRACT SUM 10.1 The Owner shall pay the Contractor in current funds for performance of the Contract the Contract Sum of One million, One hundred sixty-five thousand, Six hundred ninety-four Dollars and No Cents $1,165,694.00 subject to additions and deductions as provided in the Contract Documents. 10.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and have been accepted by the Owner and the Owner: N/A 10.3 Unit prices, if any, are as follows: N/A ARTICLE 11 PROGRESS PAYMENTS 11.1 Based upon applications for payment submitted to the Owner by the Contractor, corresponding to Applications for Payment submitted by the Contractor to the Owner, and Certificates for Payment issued by the Owner, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. 11.2 The period covered by each application for payment shall be one calendar month ending on the last day of the month, or as follows: N/A 11.3 Provided an application for payment is received by the Owner not later than the 25th day of a month, the Owner shall include the Contracto(s Work covered by that application in the next Application for Payment. The Owner shall pay the Contractor each progress payment within 30 days. 11.4 If an application for payment is received by the Owner after the application date fixed above, the Contracto(s Work covered by it shall be included by the Owner in the next Application for Payment. 11.5 Each application for payment shall be based upon the most recent schedule of values submitted by the Contractor and approved by the Owner, in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Contracto(s Work and be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule, unless objected to by the Owner, shall be used as a basis for reviewing the Contracto(s applications for payment 7 Casper?J:Jl. 265.5997 . Colorado Springs 719.592.0364. Derwer 303.975.2100. Las Vegas 702.740.5100. Salt Lake City 801.487.CEal 11.6 Applications for payment submitted by the Contractor shall indicate the percentage of completion of each portion of the Contracto~s Work as of end of the period covered by the application for payment. 11.7 Subject to the provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: 11.7.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Contracto~s Work by the share of the total Contract Sum allocated to that portion of the Contracto~s Work in the schedule of values. Pending final determination of the cost to the Owner of changes in the Work which have been properly authorized by Construction Change Directive, amounts not in dispute may be included, even though the Contract Sum has not yet been adjusted. 11.7.2Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site by the Contractor for subsequent incorporation in the Contracto~s Work or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing. 11.7.3 Subtract the aggregate of previous payments made by the Owner; and 11.7.4 Subtract the amounts, if any, calculated under Subparagraph 11.7.1 or 11.7.2 which are related to Work oflhe Contractor for which the Owner has withheld or nullified, in whole or in part, a Certificate of Payment for a cause which is the fault of the Contractor. 11.8 SUBSTANTIAL COMPLETION 11.8.1 When the Contracto~s Work or designated portion thereof is substantially complete and in accordance with the requirements of the Contract, the Owner shall, upon application by the Contractor, make prompt application for payment for such Work. Within 30 days following issuance by the Owner of the Certificate for Payment covering such substantially completed Work, the Owner shall, make payment to the Contractor, deducting any portion of the funds for the Contracto~s Work withheld in accordance with the Certificate to cover costs of items to be completed or corrected by the Contractor. ARTICLE 12 FINAL PAYMENT 12.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when the Contracto~s Work is fully performed in accordance with the requirements of the Contract Documents, the Owner has issued a certificate for Payment covering the Contracto~s completed W6rk. 12.2 Before issuance of the final payment, the Contractor, if required, shall submit evidence satisfactory to the Owner that all payrolls, bills for materials and equipment, and all known indebtedness connected with the Contractor's Work have been satisfied. 8 Casper?JJT. 265.5997 . Colorado Springs 719.592.0364. Denver 303.9752100. Las Vegas 702.740.5100. Salt Lake City 801 .487.0008 ARTICLE 13 INSURANCE AND BONDS 13.1 The Contractor shall purchase and maintain insurance of the following types of coverage and limits of liability: LONG to submit current certificates of liability insurance and workmen's compensation to City of Aspen Recreation Center. No payment shall be released to the contractor until these documents are on file in City of Aspen Recreation Center office. LONG will purchase and maintain the following insurances: Commercial general liability not less than $1,000,000 for bodily injury and $1,000,000 for property damage; Comprehensive automotive bodily injury and property damage not less than $1,000,000.; Workers compensation and employers liability insurance as required by the State of CnlnrAdn_ 13.2 Coverage, whether written on an occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Contracto(s Work until date of final payment and tennination of any coverage required to be maintained after final payment. 13.3 Certificate of insurance shall be filed with the Owner prior to commencement of the Contracto(s Work. These certificates and the insurance policies required by this Article 13 shall contain a provision that coverage afforded under the policies will not be cancelled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final application for payment as required in Article 12. If any infonnation concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Contractor with reasonable promptness according to the Contracto(s infonnation and belief. 13.4 Waivers of subrogation. The Owner and Contractor waive all rights against (1) each other and any of their Subcontractors, Sub-subcontractors, agents and employees, each of the other and (2) the Owner, separate contractors, and any of their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by property insurance applicable to the Work, except such rights as they may have to proceeds of such insurance held by the Owner as fiduciary. The Contractor shall require of the Contracto(s Subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. 13.5 The Owner shall promptly, upon request of the Contractor, furnish a copy or pennit a copy to be made of any bond covering payment of obligations arising under the Contract. 13.6 Perfonnance Bond and Payment Bond: Yes ARTICLE 14 TEMPORARY FACILITIES AND WORKING CONDITIONS 14.1 The Owner shall fumish and make available to the Contractor the following temporary facilities, equipment and services; these shall be furnished at no cost to the Contractor unless otherwise indicated below: N/A 14.2 Specific working conditions: N/A 9 Casper?lJl. 265.5997 . Colorado Springs 719.592.0364. Denver 303.975.2100. Las Vegas 702.740.5100. Salt Lake Oty !ll1.487.0008 ARTICLE 15 MISCELLANEOUS PROVISIONS 15.1 Where reference is made in this Agreement to a provision of the General Conditions or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. ARTICLE 16 ENUMERATION OF CONTRACT DOCUMENTS 16.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: 16.1.1 This executed Agreement Between Owner and Contractor; 16.1.2 The following Modifications to the Contract, if any, issued prior to the execution of this Agreement Modification N/A Date N/A 16.1.3 Other documents, if any, forming part of the Contract Documents are as follows: N/A This Agreement entered into as of the day and year first written above. City of Aspen Recreation Center LONG Building Technologies, Inc. ~y~. ~~ he", 17 h- rzk / c.r. '7,.,-- 1> "" VI fJ- J (Print Na and Title) Name -, ),2.-)..--.P? ~~O I (Date) (Date) 10 Casper?lJl. 265.5997 . Colorado 5prings 719.592.0364. Denver 303.975.2100. Las Vegas 702.740.5100. Salt Lake Oty 801.467.0800 SCOPE OF WORK ADDENDUM 1. Responsible for any costs associated with the removal of trash, scraps, or additional materials (landfill fees for example). 2. All project Management of improvements identified in this scope 3. Any permits necessary for the installation of identified improvements and systems. 4. All delivery costs associated with materials. 5. aDen Book Pricing. Open book pricing will be required, such that the Contractor will fully disclose all costs. Contractor will maintain cost accounting records on authorized work performed documenting actual costs for labor and material, or other basis agreed to by the Customer. Contractor will afford Customer access to these records and preserve them for a period of one (I) year after final payment. In establishing the Contract Sum, the Contractor has used the following markup for overhead and profit: 15% margin; and the Contractor has applied it to the subcontracts, labor and material costs as estimated. The Contract Sum shall be adjusted based on the actual costs of subcontracts, labor and materials to the Contractor multiplied by the markup above, but in no event shall the Contract Sum be increased. In the event it is possible to reduce the Contract Sum because the contingency budget is not spent or the actual labor and material costs are less than budgeted, the Customer can, at is sole option, increase the Scope of Work to include additional equipment such that the original Contract Sum is reached. If the Customer declines to increase the scope of Work, at its sole option, the Contract Sum shall be reduced to an amount consistent with the pricing using the stated markup. Approvals: rrfl6l~ - (\~""""~ \\ ~" _I .:, Ilt'i!')tt. .../. >;./[\ ~i'i .<> I": ;,.;. ;:'".. . AnnualEn~ ....;..; ". ,'< Savmgs i If/eo, :\', 'WiT'''' . r [SlYr] '0 .... [S;:.' 6.1 Remove Capstone oenerato 0 0 $0 ($3,500) instant 6.2 Family pool surfactan 66,070 37,537 $33,978 $2,000 0.1 6.3 Lan noaI cove 76,688 27,608 $26,255 $34.000 1.3 6.4 Zamboni pit ice melt control 8.164 4,225 $7.904 $11.000 1.4 6.5 AHU.2&4 waste heatrecoveI"1 -36,222 53,846 $42,846 $239,984 5.4 6.6 Boiler outside ai reset / Additional nool heat exchanger 20.027 5,972 $5,835 $11 0,020 18.9 6.7 NiQ:ht setback 18,549 6,515 $6,639 $18,800 2.8 6.8 Vending controls 4,205 0 $187 $566 3 6.9 AHU-l waste heat recover. -27,764 31,932 $25,127 $197,716 7.9 6.10 Ccommissionin 92,745 10,858 $13,142 $47,950 4.1 6.11 Renlace thermostats 18,549 2,172 $2,647 $13,200 5 6.12 Power (]ualitv stud 0 0 $0 $5,000 5.01 6.13 Reduce snow in ai intake 1,944 102 $263 $1,100 4.2 6.14 LiQ:htinQ: efficienc 25,224 -349 $1,114 $9,400 6.21 6.15 Occunancv sensors 26,823 -372 $887 $7,360 7.51 6.16 AHU-3 waste hea recoven -8,444 11,784 $9,778 $154,400 15.8 6.17 Heat Ex fo PoolsfBldo-mHW 0 15,834 $13,649 $90.515 6.6 6.18 Modify AHU-3 control s stem 17,902 0 $806 $8,400 IDA 6.19 Seebelo 0 0 $0 $0 0 6.20 Daylighting and controls 44,421 -615 $2,282 $33.462 11.61 6.21 Heabng system Pump Operation 20,027 0 $902 $21,890 24.3 TOTAL $368,908 $207,049 $194,241 l,uu3,.ltJ3 N/A interactive ellects discount - 33~. 121,740 68,326 64,100 N/A N/A --cian (Iota ;247;[68 .7ZT SHU,l41 , ,2.j 7.7 6.22 Install new control system 0 0 $0 $71,005 N/A 6.23 Provide New Boiler for System Expansion Reduntblncy 0 0 $0 $53,988 N/A 6.24 Heating System lnfrstructure for Expansion Projects 0 0 $0 $123,926 NlA TOTAL $368,908 $207,049 $194,241 $1,252,182 N/A InteractIVe enects discount - 33% 121,740 68,326 64,100 N/A N/A Grand Total $247,168 $138,723 $130.141 $1,252,182 9.6 Table 2 1 Revised 4/23/2007 6.19 Solarthenna system 0 8,790 $12.041 $273,000 22.7 !UTA! ""Slf , $1l, 1 , TI:7 \\ "B~' LCNG 1795 W. Yale Avenue Englewood, CO 80110 303.975.2152 tel 303.936.2755 fax dhargrave@long.com ENERGY SOLUTIONS March 20, 2007 Tim Andersen Director, Aspen Recreation Center City of Aspen 0861 Maroon Creek Road Aspen, Colorado 80202 RE: Measurement and verification for Aspen Recreation Center Tim: Per your inquiry for guaranteed energy savings for LONG Energy Solution's (LONG) work at the Aspen Recreation Center (ARC). While the request for guaranteed savings is typically and best made at the beginning of an energy improvement project, LONG is still able to provide guaranteed savings for the ARC's project though certain steps would have to be undertaken before any construction work begins, This letter briefly outlines the costs, variables that would need to be measured to provide guaranteed savings, and scheduling recommendations, Guaranteed savings can only be provided if the ARC develops and enacts a measurement and verification (M&V) plan. The M&V Plan needs to be developed and commenced before any renovations take place in order to accurate document the baseline of energy consumption from which all future energy savings will be measured, There are several M& V protocols that can be employed for energy projects. For the ARC project, LONG recommends Option B of the International Performance Measurement and Verification Protocol (IPMVP), which takes frequent measurements for three years at a building system level. Such an approach allows for the ARC to isolate energy savings with a high degree of confidence, The cost for LONG to provide guaranteed savings and execute an corresponding Option B M&V Plan would be $35,000 for the first year and $24,000 to $30,500 per year for the second and third years. The exact cost to execute the plan is dependent on the details of the plan developed. ARC would have the option of buying out LONG from the M&V Plan in years two and three. Guaranteeing energy savings via M& V Plans requires that a large number of variables that can impact energy use be addressed. The list of variables to be considered include, but are not limited to: number of patrons per hour at the ARC, hourly weather data, ARC hours of operation, degree to which garage doors in the natatorium are open, changes in lighting schemes/operations, changes in sequence of operations for HV AC equipment, treatment of the pool cover measure (which has already been installed), how to account for seasonal differences in operation, and changes in square footage and use of space types. In developing an M& V Plan, LONG and the ARC would need to negotiate which variables would be measured and which would be stipulated. If the ARC wishes to pursue guaranteed savings, LONG must be given notice to proceed before any energy improvement work commences. LONG recommends that a written notice to proceed be granted immediately so an M&V Plan could begin to be developed so as to minimize the impact on ::::aiorado Nev<::da Ut~h V\!yoming "c. ., C~RE Community Office for Resource Efficiency P.O, Box 9707 Aspen, CO 81612 TEL 970-544-9808 FAX 970-963-5691 3-15,07 To: Aspen City Council From: Gary Goodson, Associate Director Subject: Aspen Recreation Center - Energy Efficiency Improvements CORE recognizes that the ARC, while well maintained and operated, is by the nature of its building type and location, an energy intensive facility. Note that combined annual natural gas and electricity bills for this facility now total more than $300,000. And energy prices are likely to climb much higher. Investing in efficiency and conservation now makes tremendous sense; any savings will act as a hedge against these future increases. While significant efficiency work has been completed at the ARC there are still numerous opportunities for savings. Such savings (and the strategies and investment required to gamer them) have been described previously by Long Energy Solutions (LES). CORE recommends using $85,000 in Renewable Energy Mitigation Program (REMP) funds to augment an investment from the City to implement the energy conservation measures recommended by LES. REMP funds are primarily used to offset greenhouse gases by reducing the burning offossil fuels. Typical REMP priorities are for investments in renewable energy and energy efficiency for affordable housing, public buildings and incentives for citizens and businesses. CORE will also submit a $15,000 REMP request this year to add to the ARC's energy efficiency improvement funding pool. CORE does reserve the right to review all REMP expenditures before releasing funds. Any funds not spent will be returned to the REMP fund for use in other projects. Please note that this memo supersedes the 2004 ARC funding memo from CORE. 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COLORADO 81611 HI!I;" 0 !!IIJ5 rJ !IH CD ~~ f ( i r ~~ i i ~ · ~ d ISELIN POOL I ICE CENTER HVAC MOOlFICATIONS AND IMPROVEMENTS 0881 MAROON CREEK ROAD ASPEN, COLORADO 81811 m!l~ ~ 0 ,PIl,! rI i !IH SCOPE OF WORK ADDENDUM I, Responsible for any costs associated with the removal of trash, scraps, or additional materials (landfill fees for example). 2. All project Management of improvements identified in this scope 3. Any permits necessary for the installation of identified improvements and systems. 4. All delivery costs associated with materials. 5. aDen Book Pricing. Open book pricing will be required, such that the Contractor will fully disclose all costs. Contractor will maintain cost accounting records on authorized work performed documenting actual costs for labor and material, or other basis agreed to by the Customer. Contractor will afford Customer access to these records and preserve them for a period of one (I) year after final payment. In establishing the Contract Sum, the Contractor has used the following markup for overhead and profit: 15% margin; and the Contractor has applied it to the subcontracts, labor and material costs as estimated. The Contract Sum shall be adjusted based on the actual costs of subcontracts, labor and materials to the Contractor multiplied by the markup above, but in no event shall the Contract Sum be increased. In the event it is possible to reduce the Contract Sum because the contingency budget is not spent or the actual labor and material costs are less than budgeted, the Customer can, at is sole option, increase the Scope of Work to include additional equipment such that the original Contract Sum is reached. If the Customer declines to increase the scope of Work, at its sole option, the Contract Sum shall be reduced to an amount consistent with the pricing using the stated markup.