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HomeMy WebLinkAboutC03-268 American Civil Constructorsr~ • C o3 - Z6g- ~7 AGREEMENT FOR CONSTRUCTION Berry Creek Phase Two Project THIS AGREEMENT is dated as of the ~~P day of ~' in the year 2003 by and between Board of County Commissioners ~ Eagle County, Colorado (hereinafter called OWNER) and American Civil Constructors, Inc. thereinafter called CONTRACTOR) OWNER and CONTRACTOR, in consideration of the mutual covenants set forth, agree as follows: ARTICLE 1 -WORK 1.1 CONTRACTOR shall complete all work as specified in The Construction Documents set forth in article 8 and which are incorporated herein by reference. The Work is generally described as follows: providing all labor, tools materials and services for construction of the new temporary parking lot expansion, irrigation system and two softball fields and one multi purpose field and associated trails. Drainage and grading as described and identified the plans. A complete scope of work is contained in Attachment-A and is hereby incorporated in article 8. ARTICLE 2 -OWNER'S REPRESENTATIVE 2.1 The Project is under the authority of the Eagle County Facilities Management Department, the Director of which, or his designee, shall be Owner's liaison with Contractor with respect to the performance of the Work. Agreement Page 1 F:~EClandfiRshopContr.wpd SEP-05-03 09:53 FROM:EAGLE COUNTY FACILITIES ID=9703288899 PAGE ARTICLE 3 -CONTRACT TIME 3.1 Tf•le work is to commence on September 15, 2003 and will be substantially completed on or before November 24. 2003, and completed and ready for final payment in accordance with paragraph 14.13 of the General Conditions on or before Ma 15 2004, It is anticipated that weather will shut the project down by late October to mid November of 2003 and that work can safely re- commence around April 1, 2004. ARTICLE ~t -CONTRACT PRICE 4.1 The sum of the Cost of the work and the contractors fee is guaranteed by the. Contractor not to Exceed "Five Hundred Sixty six Thousand, Four hundred Thirty six Dollars 8~ 00/100 ($ 566,436.00) subject to additions and deductions by Change Order as provided in the contract documents. Such maximum sum is referred to in the contract documents as the Guaranteed Maximum Price. Costs which will cause The Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner. 4.2 The Guaranteed Maximum Price is based on the following, which may further be described in The Contract Documents. 4.2.1 Contractor shall prepare a construction cost estimate based on the project size, its systems, assemblies, components, construction type and the location. During the construction document phase, The Contractor shall prepare a final cost estimate below the Guaranteed Maximum Price and update periodically. All estimates of Construction Cost shall make allowances for bidding and price escalation. During the construction document phase, Contractor shall continually monitor the cost estimates to assure that the work remains within the applicable project budget of The Guaranteed Maximum Price. 4.2.2 All estimates shall be made independently but in coordination with the owner and shall be based on quantitative take-offs and shall be substantiated in sufficient depth and organization to be used in preparing budgets based on: sub-trades, combinations of sub-trades and building systems. Lump sum estimates are not acceptable. During the cost estimate preparation, the Contractor shall notify the Owner if it appears that the estimate will exceed the projected cost or the Guaranteed Maximum Price as may be applicable, satisfactorily demonstrate the accuracy of its estimate in such detail as shall be rea;:onably required by the owner and make reasonable recommendation for corrective action consistent with Tha Guaranteed Maximum Price. The Contractor shall submit all cost estimates to the owner for approval. 1/1 Agreement Page 2 F:1ECIandfil~ShOpC ontr.Wpd 4.2.3 OMITTED 4.2.4 Immediately after all bids are awarded The Contractor shall prepare and submit a construction schedule for the work which shall provide for the expeditious practicable execution of the work. The schedule shall be consistent with the previously issued schedules, not exceed time limits current under The Contract Documents and shall be related to the entire project to the extent required by the contract Documents. The schedule for the performance of the work shall be a Critical Path Method system. 4.2.5 To the extent that the working drawings and or specifications are anticipated to require further development by the American Civil Constructors, The Contractor has provided in The Guaranteed Maximum Price for such further development consistent with the contract documents and reasonably inferable there from. Such further development does not include such things as changes in scope. systems, kinds and quality of materials, finishes or equipment all of which, if required. shall be incorporated by change orders. 4.3 Pursuant to the provisions §24-91-103.6, C.R.S., and notwithstanding anything to the contrary contained elsewhere in the Contract Documents, no change order or other form of order or directive by Owner, and no amendment to this Agreement. requiring additional compensable work to be performed which work causes the aggregate amount payable under the Agreement to exceed the amount appropriated for the original Agreement, shall be of any force or effect unless accompanied by a written assurance by Owner that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under aremedy-granting provision in the Agreement. 4.4 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to Owner nor shall any payment be made to Contractor for any Work done after December 31, 2003 without the written approval of the Owner in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised Statues and the Local Government Budget Law (C.R.S. 29-1- 101 et seq. ). ARTICLE 5 -LIQUIDATED DAMAGES 5.1 LIQUIDATED DAMAGES: Owner and Contractor recognize that time is of the essence of this agreement and that the Owner will suffer financial loss if the Work is not substantially complete within the time specified in paragraph 3.1 above, plus any extensions thereof allowed in accordance with the General Agreement Page 3 F:~EClandfll~hopContr.wpd . • Conditions. They also recognize the delays, expense, and difficulties involved in proving a legal or arbitration preceding the actual loss suffered by Owner if the Work is not substantially complete on time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner Three Hundred dollars 300.00) for each day that expires after the time specked in paragraph 3.1 for completion until the Work is complete. 5.2 The completion dates as set forth in paragraph 3.1 above include a reasonable time for the reviews and approvals required by this agreement. Should the Contractor be unreasonably delayed by the failure of any person or entity to provide review or approval within such reasonable time, Contractor shall be entitled to an appropriate extension of time after a written request for such extension has been submitted to and approved by counts designated representative in writing. No time extension will be granted unless a determination is made by the Owner, in its sole discretion that good cause exists for such extension. ARTICLE 6 -PAYMENT PROCEDURE 6.1 The Contractor shall submit applications for payment and back-up material (e.g. Subcontractor's invoices, vender statements and receipts) as shall be reasonably required in accordance with the General Conditions. Applications for Payment will be processed as provided in the General Conditions. 6.2 PROGRESS PAYMENTS: Owner shall make monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Payments, as provided below. All progress payments will be on the basis of the progress of the Work. 6.2.1 Prior to Completion, progress payments will be in an amount equal to: 90% of the Work completed until fifty percent (50%) of the Work is performed, after which no additional retainage shalt be withheld, and 100% of materials and equipment not necessarily incorporated in the Work at that time but delivered and suitably stored on site, Less in each case the aggregate of payments previously made. 6.3 FINAL PAYMENT: Upon final completion and acceptance in accordance with the General Conditions, Owner shall pay the remainder of the Contract Price. The final payment shall not be made until after final settlement of this contract has been duly advertised at least ten days prior to such final payment by publication Agreement Page 4 F:~EClandfil~shopContr.wpd '. • • of notice thereof at least twice in a public newspaper of general circulation published in Eagle County, and the Board of County Commissioners has held a public hearing, thereupon and complied with the C.R.S. §38-26-107. Final payment shall be made in accordance with the requirements of the aforesaid statute. ARTICLE 7 -CONTRACTOR'S REPRESENTATIONS 7.1 In order to induce Owner to enter into this Agreement, Contractor makes the following representations: 7.2 Contractor has familiarized himself with the nature and extent of the Contract Documents, Work, locality, and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner may affect cost, progress, or performance of the Work. 7.3 Contractor has made, or caused to be made, examinations, investigations, and tests and studies of such reports and related data as he deems necessary for the performance of the Work at the Contract Price, within the Contract Time, and in accordance with other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports, or similar data are, or will be required by Contractor for such purposes. 7.4 Contractor has correlated the results of all such observations, examinations, investigations, tests, reports, and data with the terms and conditions of the Contract Documents. 7.5 Contractor has given Owner written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by Owner is acceptable to Contractor. 7.6 Contractor will develop a Project Time Schedule that coordinates and integrates the owner's design efforts with construction schedules. Update the Project Time Schedule incorporating a detailed schedule (showing milestones and the critical path) for the construction operations of the project, including realistic activity sequences and durations, allocation of labor and materials processing of shop lead-time procurement. 7.7 In cooperation with the County, the Contractor shall attend weekly meetings regularly to discuss progress, present material and information and respond to questions regarding the Project. The Contractor will be responsible for submitting to County, within five working days, the minutes of all meetings during the construction phase. The Contractor shall maintain the minutes and suggested modifications in chronological order in a three-hole punch binder. Agreement Page 5 F:1ECIandfil~shopContr.wpd '. 7.8 At the completion of the project, The Contractor shall prepare an as built set of plans and submit to the County. - ARTICLE 8 -CONTRACT DOCUMENTS The Contract Documents which comprise the entire Agreement are made a part hereof and consist of the following: 8.1 This Agreement. 8.2 Attachment °A" prepared by ACC 8.3 The Working Drawings prepared by American Civil Constructors. 8.4 The Specifications prepared by Eagle County Facilities Management Dated September 4, 2003 8.5 Notice of Award, Notice to Proceed. 8.6 General Conditions. 8.7 Contractors bid proposal, dated: September 3, 2003 8.8 Any modification, including Change Orders, duty delivered after execution of Agreement. There are no Contract Documents other than those listed above in this Article 8. The Contract Documents may only be altered, amended, or repealed by an executed, written amendment to this Agreement. ARTICLE 9 -SCHEDULE & SECURITY 9.1 Contractor shall submit its proposed Work schedule to Owner for prior to construction. All Work will be scheduled and performed in a manner which will produce minimum interference with the daily business activities of Eagle County. Unless otherwise agreed, Contractor shall be allowed on site for performance of Work only during the agreed upon time. Agreement Page 6 F:1ECIandfillshopContr.wpd i ~ ARTICLE 10-INDEPENDENT CONTRACTOR 10.1 It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, and employment relationship. Contractor shall be, and shall perform as, an independent contractor. No agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of Owner. The Contractor shall be solely and entirely responsible for its act and for the acts of Contractor's agents, employees, servants and subcontractors during the performance of this Agreement. ARTICLE 11-CONTRACTOR'S LEVEL OF CARE 11.1 The Contractor shall be responsible for completeness and accuracy of the Work, including all supporting data and other documents prepared or compiled in performance of the Work, and shall correct, at its sole expense, all errors and omissions therein. The fact that the Owner has accepted or approved the Contractor's Work shall not relieve the contractor of any of its responsibilities. The Contractor and its professional consultants shall perform the Work in a skillful, professional and competent manner and in accordance with the standards of care, skill and diligence applicable to other contractors performing this type of work. RTICLE 12 -MISCELLANEOUS 12.1 No assignment by a party hereto of any rights under, or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 12.2 Owner and Contractor each binds himself, his partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in the Contract Documents. 12.3 ATTORNEY'S FEES: In the event of litigation between the parties hereto regarding the interpretation of this Agreement, or the obligations, duties or rights of the parties hereunder, or if suit otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or speck Agreement Page 7 F:1ECIandfil`shopContr.wpd • • performance, then and in such events, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. 12.4 APPLICABLE LAW: This Agreement shall be governed by the laws of the State of Colorado. Jurisdiction and venue of any suit, right, or cause of action arising under, or in connection with this Agreement shall be exclusive in Eagle County, Colorado. 12.5 INTEGRATION: This Agreement, including those documents set forth in article 8, supersedes all previous communications, negotiations and/or contracts between the respective parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof accept as expressly set forth in the Contract Documents. 12.6 NOTICE: Notice shall be provided to the respective parties by being given to the persons at the addresses as follows, until changed by notice: 12.7 The Contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of the Work on the basis of race, color, religion, national origin, sex, ancestry, physical handicap, or age. The contractor shall require all consultants to agree to the provisions of this paragraph. To American Civil Constructors 4901 South Windermere, Littleton, Colorado 80120 Phone: 303 795-2582 Fax: 303 797-0798 Ce11:303 210-5280 To OWNER: Director Facilities Management Dept. Eagle County P.O. Box 850, 590 Broadway Eagle, CO 81631 Phone: 970-328-8880; Fax: 970-328-8899 Written notices shall be delivered personally, by commercial messenger service or by prepaid U.S. mail. Notices also may be given by facsimile transmission provided an original is also promptly delivered. //////// [Next page is signature page] \\\\\\\\ Agreement Page 8 F:~EClandfillshopContr.wpd • • IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. "Owner": COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST ~ -~ QARD OF COUNTY COMMISSIONERS ~ ~~~ ~ o~ ~''~ ~ '. ~, .~ By: ~' ~ s ~ By: Clerk of the Bo rd of ~®$®c^~~o ~ Michael Gallagher, airman County Commissioners -~ " --- "Contractor": American Civil Constructors Mr. Eric Reger By: ~. STATE OF COLORADO ) ~~ ~~Scd~ ss: County of ) On t ' ~~ day of , 2003, came befo a me, notary pubic, known to me to be the ` ~A Q of American it Constructors, who acknowledged to me that he executed the foregoing document, that he executed it in that capacity, and that the same was the act of that corporation. My commission expires: [ ~ • ~ ~ ~~ ~jj Notary Publi Agreement Page 9 F:~EClandftl~shopContr.wpd w ~ GENERAL CONDITIONS 1. Contractor shall provide and pay for labor, materials, equipment, tools, utilities, permits, licenses, transportation, and other facilities and services necessary for proper execution and completion of the Work. 2. If Contractor fails to obtain the tax exemption(s) applicable to public works projects from sales, consumer, use and similar taxes, Contractor shall pay the same. Owner will cooperate with Contractor to obtain tax exemption for this project. 3. Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost thereof. Any failure by Contractor to do so will not relieve him from responsibility for successfully performing the Work without additional expense to the Owner. Owner assumes no responsibility for any understanding or representations concerning conditions made by any of its officers, employees or agents prior to the execution of this Agreement, unless such understanding or representations are expressly stated in the Agreement. 4. Before commencing activities, Contractor shall: (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to Contractor with the Agreement; and (3) promptly report errors, inconsistencies or omissions discovered to Owner. 5. Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. 6. Contractor, as soon as practicable, shall furnish in writing to the Owner the names of subcontractors and suppliers for each portion of the Work. 7. No charge shall be made by Contractor for hindrances or delays from any cause whatever during the progress of any portion of the Work, unless such hindrance or delay is caused in whole or in part by acts or omissions within the Agreement Page 10 F:1ECIandflllshopContr.wpd ~ ~ control of Owner. In any event, Owner may grant an extension of time for the completion of the Work, provided it is satisfied that delays or hindrances were due to causes outside Contractor's control, e.g., weather, or to acts of omission or commission by the Owner, provided that such extensions of time shall in no instance exceed the time actually lost to Contractor by reason of such causes, and provided further that Contractor shall have given Owner immediate (as determined by the circumstances, but not exceeding 48 hours) notice in writing of the cause of the detention or delay. 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. 9. Contractor warrants to Owner that: (1) materials and equipment furnished under the Agreement will be new and of good quality; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Agreement. 10. Contractor shall comply with and give notices required by alt federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the Work. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to Owner, Contractor shall assume full responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify Owner in writing of any conflicts between the specifications for the Work and such governmental laws, rules and regulations. 11. Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. 12. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the contract price as security for the faithful performance and payment of all Contractors' obligations under the contract documents. These bonds shall remain in effect at least until ONE year after the date of final payment, except_as otherwise provided by law. All bonds shall be in forms satisfactory to Owner, and be executed by such sureties as (a) are licensed to conduct business in the state where the project is located, and (b) 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 General Conditions Page 11 F:1ECIandfil~shopContr.wpd • • of Accounts, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of the authority to act. If the surety on any bond furnished by Contractor is declared bankrupt, or becomes insolvent, or its right to do business is terminated in any state where any part of the project is located, or it ceases to meet the requirements of clauses (a) and (b) of the preceding paragraph, Contractor shall within five days thereafter substitute another bond and surety, both of which shall be acceptable to Owner. 13. Contractor shall be solely responsible for the protection of the Work until its final acceptance by Owner. Contractor shall have no claim against Owner because of any damage or loss to the Work, and shall be responsible for the complete restoration of damaged Work to its original condition. In the event Contractor's Work is damaged by another party, not under his supervision or control, Contractor shall make his claim directly with the party involved. If a conflict or disagreement develops between Contractor and another party concerning the responsibility for damage or loss to Contractor's Work, such conflict shall not be cause for delay in Contractor's restoration of the damaged Work. 14. Contractor's Insurance: The Contractor shall purchase and maintain such insurance as will protect him from claims set forth below which may arise out of or .result from the Contractor's operations under the contract, whether such operations be by himself, or by any subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All such insurance shall remain in effect until final payment, and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work. In addition, Contractor shall maintain such completed operations insurance for at least two years after final payment, and furnish Owner with evidence of continuation of such insurance at final payment and one year thereafter. Insurance coverages shall be as follows: Claims under Workmen's Compensation, disability benefits, and other similar employee benefit acts, with coverage and in amounts as required by the laws of the State of Colorado; Claims for damage because of bodily injury, occupational sickness or disease, or death of his employees, and claims insured by usual personal injury liability coverage; General Conditions Page 12 F:1ECIandfillshopConU.wpd • . Claims for damage because of bodily injury, sickness or disease, or death of any person other than his employees, and claims insured by usual personal injury liability coverage; and Claims for damages because of injury to or destruction of tangible property, including loss of use resulting therefrom. Contractor's Liability Insurance issued to and covering the liability for damage imposed by law upon the Contractor and each subcontractor with- respect to all Work performed by them under the agreement (construction contract). Contractor's Protective Liability Insurance issued to and covering the liability for damages imposed by law upon the Contractor and each subcontractor with respect to all Work under the agreement (construction contract) performed for the Contractor by subcontractors. Completed Operations Liability Insurance issued to and covering the liability for damage imposed by law upon the Contractor and each subcontractor arising between the date of final cessation of the Work, and the date of final acceptance thereof out of that part of the Work performed by each. Comprehensive Automobile Insurance shall be carried in the amount of $1,000,000/$2,000,000 for bodily injury and $500,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be Comprehensive General and Automobile Bodily Injury and Properly Damage form of policy. The Contractor shall in addition, and in the amounts required under the above, obtain protective Liability Insurance issued to and covering the liability for damages imposed by law upon the Owner with respect to all operations under the construction contract by the Contractor or his subcontractors, including omissions and supervisory acts by the Owner. Builder's Risk Insurance: Insofar as the Work to be performed under this contract consists entirely of new. construction removed and separated from any existing facility used by Owner, Contractor shall procure and maintain, for the duration of the Work of this project, Builder's Risk Insurance, including the perils of fire, extended coverage (loss due to vehicles, explosion, wind, flood, riot, etc.), vandalism and malicious mischief, and special extended coverage (loss due to falling objects, collapse, water damage from faulty or leaking systems, etc.) in the full amount of the contract price plus the cost of authorized extras. Said amount of insurance coverage shall be considered to cover the insurable value of the Work under this contract which is considered not to exceed one hundred percent (100%) of the amount of this contract and authorized extras. General Conditions Page 13 F:~EClandfillshopContr.wpd • . Such policy shall not insure any tools or equipment, or temporary structures erected at the site and belonging to any person or persons, or their subcontractors who are obliged by contract with the Owner to do Work on the projects. Comprehensive Risk Policy Option: In lieu of the several policies specified for Contractor's Liability Insurance, a comprehensive liability and property damage insurance policy inclusive of all the insurance and requirements herein set forth, subject to the approval of the Owner, will be permissible. Insurance covering claims for damages to persons or property required by the preceding paragraph shall be in the following minimum amounts: Bodily Injury Liability: Each Person: $ 1,000,000 Each Accident or Occurrence: $ 2,000,000 Properly Damage Liability: Each Accident or Occurrence: $1,000,000 Aggregate: $ 2,000,000 Insurance shall be placed jointly in the names of the Owner, Contractor, and any and all subcontractors, and any and all others obliged by contract with the Owner to do Work on this project, and, at the Owner's option, any other person or persons whom the Owner deems to have an insurable interest in said property, or any part thereof, payable as their several interests may appear. Any proceeds obtained from insurance provided for by this paragraph shall be paid to and held by the Owner as trustee. The Owner shall have the right to withhold payment of such proceeds until such time as the Work destroyed or damaged and covered by such insurance shall be reconstructed and shall pay such proceeds on an installment basis similar to that provided for by progress payments covering the original Work. Certificates of Insurance: Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These Certificates -shall contain provisions naming the Owner as an additional insured under Contractor's insurance, as more fully required by the General Conditions herein, and that coverage afforded under the policies will not be cancelled until at least thirty days prior written notice has been given the Owner. Contractor and his subcontractors shall not permit any of his subcontractors to start Work until all required insurance have been obtained and certificates with the proper endorsements have been filed with the Owner. Failure of the Contractor to comply with the foregoing insurance requirements shall in no way waive the Owner's rights hereunder. General Conditions Page 14 F:1ECIandfillshopContr.wpd ~ • 15. The Owner, at his option, may purchase and maintain such liability insurance as will protect him against claims which may arise from operations under this contract. Purchasing and maintaining such insurance, however, will not relieve the Contractor from purchasing and maintaining the insurance hereinbefore specified. 16. Before permitting any of his subcontractors to perform any Work under this contract, Contractor shall either (a) require each of his subcontractors to procure and maintain during the life of his subcontracts, Subcontractor's Public Liability and Properly Damage Insurance of the types and in the amounts as may be applicable to his Work, which type and amounts shall be subject to the approval of the Owner, or (b) insure the activities of his subcontractors in Nis own policy. - 17. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless Owner, its board, commissioners, employees and the agents of any of them, from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance or nonperformance of the Work, 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, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. 18. After execution of the Agreement, changes in the Work may be accomplished by Change Order or by order for a minor change in the Work. Owner, without invalidating the Agreement, may order changes in the Work within the general scope of the Agreement consisting of additions, deletions or other revisions. a. No Change Orders or other form of order or directive which requires additional compensable work to be performed may be issued or be effective unless accompanied by a written assurance to the Contractor that lawful appropriations to cover the costs of the additional work have been made. b. A Change Order shall be a written order to the Contractor signed by Owner to change the Work. General Conditions Page 15 F:~ECtandflllshopContr.wpd • • c. Owner will have authority to order minor changes in the Work not involving changes in the Contract Price or the Contract Time. Such changes shall be written orders and shall be binding on the Contractor and Owner. Contractor shall carry out such written orders promptly. 19. Progress Payments: Not more often than once a month, or upon completion if the Work is perFormed in under a month, Contractor shall submit to Owner an application for payment filled out and signed by Contractor covering the work completed as of the date of the application, and accompanied by such supporting documentation as Owner may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the work, but delivered and suitably stored at the site or at another location agreed to in writing, .the application for payment shall also be accompanied by such data, satisfactory to Owner, as will establish Owner's title to the material and equipment, and protect Owner's interest therein, including applicable insurance. Each subsequent application for payment shall include an affidavit of Contractor stating that all previous progress payments received on account of the work have been applied to discharge in full all of Contractor's obligations reflected in prior applications for payment. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. Owner will, within ten days after receipt of each application for payment, either indicate in writing a recommendation of payment, or return the application to Contractor indicating in writing its reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the application. Owner shall, within twenty days of recommendation of payment, pay Contractor the amount recommended, except that final payment will be made pursuant to sections 20 and 22 hereunder. The Contractor shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following final payment hereunder, which period shall be extended at Owner's reasonable requests. Owner shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time. 20. Final Payment: Upon written notice from Contractor that the work is complete, Owner will make a final inspection with Contractor, and will notify Contractor in writing of all particulars in which this inspection reveals that the work is incomplete or General Conditions Page 16 F:1ECIandfll~shopContr.wpd • defective. Contractor shall immediately take such measures as are necessary to remedy such deficiencies. After Contractor has completed all such corrections to the satisfaction of Owner, and delivered all maintenance and operating instructions; schedules, guarantees, bonds, certificates of inspection, marked-up record documents or as.-built drawings covering all of the Work, Contractor may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation called for in the contract documents, and such other data and schedules as Owner may reasonably require, together with complete and legally effective releases or waivers (satisfactory to Owner) of all liens arising out of, or filed in connection with the work. In lieu thereof, and as approved by Owner, Contractor may furnish receipts or releases in full; an afFdavit of Contractor that the releases and receipts include all labor, services, material, and equipment for which lien could be filed, and that all payrolls, material, and equipment bills, and other indebtedness connected with the work, for which Owner or his property might in any way be responsible, have been paid or otherwise satisfied; and consent of the surety, if any, to final payment. If any subcontractor, manufacturer, fabricator, supplier, or distributor fails to furnish a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any lien. 21. Contractor warrants and guarantees that title to all work, materials, and equipment covered by any application for payment, whether incorporated in the project or not, will pass to Owner at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens"). 22. Final payment shall not become due until Contractor submits to Owner releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Work. Final payment is subject to the Final Settlement requirements and time periods set forth in C.R.S. §38-26-107. 23. Contractor's obligation to perform and complete the Work in accordance with the contract documents shall be absolute. Neither the recommendation of any progress or final payment nor the payment by Owner to Contractor under the contract documents, nor any use or occupancy of the Work or any part thereof by Owner, nor any act of acceptance by Owner, nor any failure to do so, nor any correction of defective Work by Owner shall constitute an acceptance of Work not in accordance with the contract documents or a release of General Conditions Page 17 F:~EClandfiRshopContr.wpd Contractors obligation to perform the Work in accordance with the contract documents. 24. If Contractor fails to correct Work which is not in accordance with the Agreement, the Owner may direct the Contractor to stop the Work until the correction is made. 25. If Contractor defaults or neglects to cant' out the Work in accordance with the. Agreement and fails within a seven day period after receipt of written notice from the Owner to correct such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, correct such deficiencies. In such case, the Agreement may be terminated by Owner or a Change Order shall be issued deducting the cost of correction from payments due the Contractor. If, instead of requiring replacement of defective work, Owner prefers to accept it, Owner may do so. In such case, a change order shall be issued incorporating the necessary revisions in the contract price. 26. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Agreement. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, or by anyone for whose acts the Contractor may be liable. 27. Contractor shall promptly correct Work rejected by Owner as failing to conform to the requirements of the Agreement and Contractor shall bear the cost of correcting such rejected Work. Contractor shall carry on the worm and maintain the progress schedule during all disputes or disagreements with Owner. No work shall be delayed or postponed pending resolution of any disputes or disagreements, except as Contractor and Owner May otherwise agree in writing or as otherwise set forth herein. 28. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of all defects ,shall be given to Contractor. If, within one year after the date of completion, or such longer period of time as may be set forth in the Agreement (including the Bid), prescribed by law, prescribed by the terms of any applicable warranty given by a materials supplier or required by or a part of the Agreement, any Work is found to be defective, Contractor shall promptly, without cost to Owner, and in accordance with Owner's' written instructions, either correct such defective Work, or, if it has been rejected by Owner, remove it from the site, and replace it with non-defective work. If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or the rejected Work removed and replaced, and all General Conditions Page 18 F:~EClandfillshopConV.wpd ~ ~ direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. 29. CONTRACTOR shall promptly notify OWNER in writing of any latent physical conditions at the site or in an existing structure differing materially from those indicated or referred to in the contract documents. 30. The performance of the Work may be terminated at any time in whole, or from time to time in part, by Owner for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice ("Notice of Termination") specifying the extent to which performance of the Work is terminated and the date upon which termination becomes effective. After receipt of a Notice of Termination, and except as otherwise directed by Owner. Contractor shall, in good faith, and to the best of its ability, do all things necessary, in the light of such notice and of such requests in implementation thereof as Owner may make, to assure the efficient, proper closeout of the terminated Work (including the protection of Owner's property). Among other things, Contractor shall, except as otherwise directed or approved by Owner: a. stops the Work on the date and to the extent specified in the Notice of Termination; b. place no further orders or subcontracts for services, equipment or materials except as may be necessary for completion of such portion of the Work as is not terminated; c. terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination; d. assign to Owner, in the manner and to the extent directed by it, all of the right, title and interest of Contractor under the orders or subcontracts so terminated, in which case Owner shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; e. with the approval of Owner, settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts; and f. deliver to Owner, when and as directed by Owner, all documents and all property which, if the Work had been completed, Contractor would be required to account for or deliver to Owner, and transfer title to such property to Owner to the extent not already transferred. General Conditions Page 19 F:1ECIandfil`shopContr.wpd P • In the event of such termination, there shall be an equitable reduction of The Contract Price to reflect the reduction in the Work. The Contractor shall b'e entitled to payment for the work performed prior to the termination. SPECIFICATIONS DRAWINGS General Conditions Page 20 F:1ECIandftllshopContr.wpd BERRY CREEK PHASE II Summary of ACC Estimate September 5, 2003 • Ref Item Unit Quan Unit Extension Notes Fall 2003 1 Desi n and A royals LS 1 7 000 7 000 2 Clear and Grub SF 253,750 0.05 12,350 stockpile on site; erect orange construction fence 3 Gradin /Excavation CY 22 576 3.76 84 890 4 Ta soil Screenin CY 8 500 2.85 24 225 5 12° and 30° drain i LS 1 9 750 9 750 under the infield; includes ri ra and FES 6 Erosion Control LS 1 13,060 13,060 VTC; hay bales; silt fence, blanket, native seed 7 Irri ation SF 253 750 0.21 53 288 wires to existin controller 8 Soil Amendments SF 253,750 0.54 137,025 sand, compost; rototill 6° one way, compaction and rough grade; excludes ITN ORGANO 9 Fine Grade SF 253 750 0.04 10 150 after soil amendments; laser raded 10 Preplant fertilizer SF 253,750 0.030 7,613 18-46-0 @ 2501bs/ac & 0-0-62 @ 75 IbsJac 11 Sod SF 253 750 0.410 104 038 Emerald Turf Sod 12 Infield Mix + cla boxes SF 27 000 1.27 34 290 4" de th 13 Backstop EA 2 13,500 27,000 angled backstop only; side fenc~ss/dugouts not included. This is an ALLOWANCE. If price exceeds allowance, ACC will be entitled to the difference plus 10% markup plus bond cost. 14 As halt Path 2" as h.• 4" base SF 7 380 3.37 24 871 from the housin area to the arkin lot 15 Crusher Fines Path/behind backsto SF 2 770 1.15 3 186 3" de th; from aved ath to bike ath 16 Parkin Lot SF 21 080 0.65 13 702 3" de fit 17 TOTAL BASE ESTIMATE 586 438 includes MOB and Bond 18 Alternates Adds a Draina eon east side LS 1 34 770 34 770 two manholes i e 8 ri -ra b Pre lant li uid fert LS 1 15 686 8 074 PHOS includes credit for #10 c Post lant li uid fert LS 1 32 980 32 980 NITRO ROOTER d ITN ORGANO LBS 6 370 1.41 8 982 ORGANO 251bs/1,000sf e Stabilized Infield Mix 3" SF 27 000 0.73 19 710 f Steel Ed er Backsto LF 500 3.00 1 500 Side fences, du outs du out roofs EA 2 to be finalized w. firm subbid h Rototiil a second direction (see item 8) SY 24,450 0.44 10,697 if two directions are need for amendment into oration I H dromulch and Tack LS 253 750 0.025 6344 to hold soil over the winter if needed Seedin and h dromulch SF 253 750 0.08 20 300 for seed onI hi h wear blue rass seed k Grow-in herbicides mowin etc. SF 253,750 0.08 20 300 for seed onl I Post lant fertilizer SF 253,750 0.03 7 613 20-20-10 2501bs.ac K:WghtCivillConstrudionlProJectslCurrenf Projects103JBDELT12013910 8eny Creek Phase IIIjESTSUM3.x/sJSheetl • ATTACHMENT A To Agreement Between American Civil Constructors, Inc. and Eagle County For Berry Creek Sports Fields Phase II SCOPE OF WORK To furnish all materials, equipment and labor to perform the work shown on the plans and described in the Phase II project manual (except where noted below), and as outlined here below. In the case of conflict, the Scope of Work below shall govern. • Desi -produce drawings in enough detail to pass approval by Eagle County and for ACC construction purposes. • Processing and Approval -submit drawings and other information necessary to gain approval by Eagle County; including meetings w. Eagle County Facilities Department and Planning Department. • Mobilization -move all necessary equipment, storage facilities and manpower to the site. • Clearing and ~rubbina -remove top 3" of vegetation and soil and move to existing stockpile west of the proposed new parking lot. Install orange plastic construction fence around east, north and west sides of the project. • Construction Staking -provide all surveying during grading/drainage operations. Eagle County to provide an in-field survey bench mark for elevation and two control points for horizontal and vertical survey needs for ACC's use. • Grading/Excavation -cut and fill necessary to achieve the grades shown on the grading plans, including excavating six inches of soil in the active field play areas (no offsite soil or rock removal is included). • Drain Pipe: -ACC will install an inlet and 12" ADS drain pipe under the infield of the west softball field and a 30" drain pipe under the proposed new path. (Other drainage elements on the east side of the site maybe needed and these are add alternates to the base scope of work and cost). • Screening topsoil -screening enough native soil to produce six inches of relatively stone and debris free topsoil to place 6" deep in the active field play areas. • Placing_and compacting fill -placement and compaction of all fill. • Erosion Control -installation of vehicle tracking pad, silt fence on the west and east ends of the site; hay bale check dams where needed in the two east-west running swales; hay bales around drainage inlet; soil erosion control blanket in the bottom of the southern swale; and native seed in same Swale and all off site areas disturbed by construction. • Irri ag tion -installation of new system. This item includes putting control wires for Phase II to the existing controller location. • Soil Amendments -supply and install sand and compost per spec and rototill 6" deep (one direction only) and compact fluffed up soil. Other ingredients listed in Phase II Project Manual (e.g. ORGANO AND PHO5) are not included. • Fine Grade -laser grade finish soil surfaces to final grades. • Preplant Fertilizer -supply and install 18-46-0 fertilizer @ the rate of 2501bs/ac and 0-0-62 fertilizer @ the rate of 751bs/ac. • Sodding -install bluegrass sod over all field and perimeter areas, from Emerald Turf Farms • Backstops -supply and install the angled, high backstop immediately behind home plate. The number given in the contract is an ALLOWANCE. If the allowance does not cover the cost of the backstops, ACC shall be entitled to the difference in price, plus a 10% markup, plus extra bond cost. • Infield Mix -includes 4" depth ofnon-stabilized tan brown infield mix from Hall Irwin and 4" depth of Hilltopper Clay at the pitcher's rubber and homeplate. • Asphalt Path -the path between the housing development on the east and the parking lot shall be paved with 2" of asphalt over a 4" rock base. • Crusher Fines -supply and insta113" depth of grey colored crusher fines from LaFarge on the proposed north-south trail leading to the existing bike path and behind the backstops. • Parking -grade, compact and spread 3" depth of 3/a" rock. • Clean up ASSUMPTIONS 1. No offsite soil or rock removal is required and excess rock/cobble can be placed in the mounds. 2. If additional soil is needed, it maybe taken from the existing on-site pile. 3. Clear and grub material can be added to the existing, on-site pile. 4. Access for supplies and material is through the existing parking lot. 5. ACC can work Saturdays and Sundays. 6. Adequate irrigation flow and pressure exist. 7. Water for sod grow-in will be available through November 15 and start again during the first week of April. 8. Initial boundary and control stakes will be provided in the field by Eagle County. 9. WECMRD to take over maintenance after substantial completion. 10. Post sod planting fertilizer is the responsibility of the Owner and is not included. 11. Fences along baseline, dugouts and dugout roofs are not included. 12. Parking lot gravel will be installed directly on compacted subgrade. 13. Pest control or removal of prairie dogs is not included. 14. Alternates include: sod vs. seed, backstops, drainage structures instead of the ditch on the east end of the site, various fertilizer options, stabilized infield mix and crusher fines mix, asphalt . path, and steel edger. Prices for these have been provided Eagle County. 15. Buildings, permanent fencing, lighting, concrete work are not included in this scope.