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HomeMy WebLinkAboutC07-233 Tusca IIAGREEMENT FOR DESIGN AND CONSTRUCTION PROJECT NAME: Eagle County Hazardous Household Waste Facility THIS AGREEMENT is dated as of the c�L% day of July, in the year, 2007 by and between Eagle County Government (Hereinafter called "County" or "ECG") and TUSCA II, INC. (Hereinafter called "Contractor") WHEREAS, the County intends to design and construct a hazardous household waste facility (the Facility") on the Property commonly known as the Eagle County Landfill, Eagle County, Colorado (the "Property"); and WHEREAS, Contractor represents to the County that it will work with qualified, licensed architects and engineers to design the Facility; has the required technical and professional expertise to develop the design and construct the Facility in accordance with the goals of County; that implementation of the project design will stay within the project budget and Guaranteed Maximum Price; and that it will undertake and supervise the construction project and provide, as required, associated services to complete the Project. WHEREAS, County and Contractor intend by this Agreement to set forth the scope of the responsibilities of Contractor in connection with the Project and related terms and conditions to govern the relationship between Contractor and County in connection with this Agreement. NOW THEREFORE, County and Contractor, in consideration of the mutual covenants set forth herein, agree as follows: ARTICLE 1 - WORK 1.1 Contractor shall design and construct on the Property, an approximately 1800 square foot facility for the purpose of disposing and containing hazardous household waste (the "Work"). The scope of Work is more fully described in Contractor's proposal, attached hereto as Exhibit "A" and incorporated herein by this reference. 1.2 Contractor covenants and agrees that it shall be responsible for both the design and for performance of the construction work necessary to complete the Project. The Work is generally described as follows: A. Design Services: Initial design documents, dated January 8, 2007, developed by Stewart Environmental Consultants, Inc., shall be used as a general guideline for design of the Facility (hereinafter, the "Master Plan"). Contractor shall contract with a qualified and licensed architect, who shall be approved by County (the "Architect"), to develop Preliminary Design Documents for the Facility which are in accord with the goals of the CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build j TuscaII.doc County and which will allow for a construction budget within the parameters of the Guaranteed Maximum Price as stated in Article 4, (hereinafter, "Design Services"). i. Within 30 days of issuance of a Notice to Proceed with Design Services, Contractor shall submit to County a proposal, including the Preliminary Design Drawings, which shall include outline specifications or other documents sufficient to establish the size, quality, and character of the entire project, a detailed statement of the Project Budget, and a proposed schedule for completion of the Facility (hereinafter collectively referred to as "Preliminary Design Documents"). The Preliminary Design Documents must be approved by the Eagle County Project Manager and ECG before the design and construction documents are implemented and the construction services may commence. iii. If the Preliminary Design Documents and/or Budget are rejected by County for failing to comply with County goals or for exceeding the Guaranteed Maximum Price, the Contractor shall, without additional cost, modify the design documents as necessary to comply with County's objectives and the Guaranteed Maximum Price. iv. If the proposal is accepted by County, then County shall provide Contractor with a Notice to Proceed with Construction Services. Any modifications to this Agreement shall be recorded in writing as an addendum. V. Prior to commencement of Construction Services, County, in its sole discretion and option, may not proceed with the project for any reason. In the event County does not proceed with the project prior to commencement of Construction Services, Contractor will be paid for design services performed to that point, time and materials inclusive, in an amount not to exceed $20,000.00. B. Construction Services: Upon receipt of a Notice to Proceed with Construction Services, Contractor shall carry out and develop the overall plans produced by the Architect and that have been pre -approved by the Eagle County Project Manager; establish procedures for coordination between the Architect and other subcontractors with respect to all aspects of the Work and implement such procedures; and supervise and direct the work of its subcontractors and coordinate the Work with the County's objectives of cost, time and quality. C. Supervision: Contractor shall supervise and direct the Work, and shall be solely responsible for all design and construction means, methods, techniques, sequences, and procedures and shall coordinate all portions of the Work under this Agreement. Contractor shall be responsible to County for the acts and omissions of the Architect, Contractor's other subcontractors, agents, employees and any other persons performing any of the Work or furnishing materials under a contract with Contractor, including the acts and omissions of the Architect. 1.3 Contractor shall furnish design, labor and construction services (1) which expeditiously, economically and properly complete its particular scope of the Work in the manner most consistent with the ECG's interests and objectives; and (2) in accordance with the highest CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 2 TuscaIl.doc standards currently practiced by persons and entities performing comparable labor and services on projects similar in size, complexity and cost in the State of Colorado. 1.4 Contractor acknowledges that this Agreement has been specifically crafted as a Design/Build contract so as to utilize the services of a Contractor who will contract and work closely with the Architect for the design component of the Project in order to decrease the cost involved with architectural design and drawings and to expedite completion of the Project. This Agreement shall not be deemed to create any contractual relationship between the County and the Architect or any other subcontractors, or any suppliers on the Project; nor shall anything contained in this Agreement be deemed to give any third party any claim or right of action against the County, the Contractor or the Architect which does not otherwise exist. 1.5 Contractor expressly recognizes that this Project must be completed within the time and fiscal constraints as set forth throughout this Agreement. Contractor further represents to the ECG that, by executing this Agreement, it has been fully informed and has thoroughly reviewed: the goals of the Project; the Master Plan; the time schedule as well as fiscal constraints of the Project; all of the Exhibits and documents attached to this Agreement, and incorporated herein by reference; and, all of the services to be provided by the Contractor pursuant to the Contract Documents. Based upon this review and analysis, the Contractor represents to the ECG that it will provide all of the necessary services and perform all of the Work within the requirements of the Contract Documents. 1.6 The Work shall include, but is not limited to, the following: A. Meeting Attendance: Meet regularly with the Eagle County Project Manager and the Eagle County Landfill Manager to discuss progress, present material and information and respond to questions regarding the Project. The Contractor will be responsible for submitting to the Eagle County Project Manager and the Eagle County Landfill Manager, within five working days, the minutes of all meetings during the construction phase. Schedule and conduct weekly progress meetings at which subcontractors, the Eagle County Project Manager, ECG, and Contractor can discuss jointly such matters as progress, problems and scheduling. Provide a detailed schedule for the operation of the Contractor and subcontractors on the project, including realistic activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples and delivery of products requiring long lead-time procurement. B. Schedule: Within fifteen (15) days of contract award, the Contractor shall prepare and submit a design and 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 this Agreement and shall be related to the entire project to the extent required by this Agreement. The schedule for the performance of the work shall be a Critical Path Method system. C. Project Construction Budget: Review the project budget and advise the Eagle County Project Manager and the Eagle County Landfill Manager if it appears that the Project Construction Budget will not be met and make recommendations for corrective action. The Contractor shall develop and monitor an effective system of Project cost control; CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 3 TuscaILdoc incorporated approved changes as they occur; develop cash flow reports and forecasts as required; identify any variance between actual and budgeted costs within project budgets; advise Eagle County Project Manager whenever projected costs are expected to vary from the projected budget and/or the Guaranteed Maximum Price, and continually monitor the cost estimates to assure that the Work remains within the applicable budget of the Guaranteed Maximum Price. D. Coordination of Contract Documents: Review the drawings and specifications recommending alternative solutions whenever design details affect construction feasibility of schedules. E. Plan Review: Review plans and specifications with the Architect and the Eagle County Project Manager so as to eliminate areas of conflict and for coordination, accuracy and completeness of the plans and specifications at the issue of the construction documents. F. Labor: Analyze the types, quantity and availability of appropriate categories of labor required for various phases of the Project. G. Project Control: Monitor the Work of the subcontractors and coordinate the Work with the activities and responsibilities of the Eagle County Project Manager, ECG, and the Architect to complete the Project in accordance with the construction documents and Eagle County's objectives of cost, time and quality. H. Organization: Establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Documents. I. Communication: Establish procedures for coordination among the Eagle County Project Manager, the Eagle County Landfill Manager, the Architect, subcontractors and Contractor with respect to all aspects of the Project and implement such procedures. J. Monitoring: Provide regular monitoring of the schedule as construction progresses. Identify potential variances with the scheduled completion dates. Review schedule for Work not started or incomplete and recommend to the Eagle County Project Manager, the Eagle County Landfill Manager, Architect, and subcontractors adjustments in the schedule to meet the completion date. Provide summary reports of each monitoring and document all changes in schedule. Determine the adequacy of the subcontractors' personnel and equipment and the availability of materials and supplies to meet the schedule. K. Cost Control: Develop and monitor an effective system of project cost control, showing actual costs for activities in progress and estimates for uncompleted tasks. Incorporate approved changes as they occur. L. Permits and Fees: Contractor shall secure all permits, including grading, mechanical and electrical permits applicable to subcontractor work and any other special permits for permanent improvements not previously obtained by Eagle County. CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 4 TuscaII.doc M. Staffing: The Contractor shall keep on the Project at all times, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Eagle County Project Manager, to coordinate and provide general direction of the work and progress of the subcontractors on the Project. The Contractor superintendent shall not be changed except with the consent of Eagle County's Project Manager, such consent to not be unreasonably withheld. The Contractor's Project Superintendent shall represent the Contractor in his/her absence and all direction given to him/her shall be as binding as if given to the Contractor. N. The Contractor shall provide full-time, qualified and efficient supervision of the Work, using their best skill and attention. The Contractor shall carefully study and compare all drawings, specifications and other instructions and shall report to the Eagle County Project Manager, and immediately correct any error, inconsistency or omission which it may discover. The Contractor shall inspect the Work of the subcontractors at all stages and at final completion and shall guard Eagle County against defects and deficiencies in such Work. The Contractor shall be responsible to Eagle County for the acts and omissions of all its employees and agents and all other persons performing any of the Work under a contract with the ECG, for which the Contractor has supervisory or inspection responsibility hereunder. O. Safety: The Contractor shall be responsible for the safety of persons and property and for compliance with all federal, state and local statutes roles, regulations and orders applicable to the conduct of the Work. P. Shop Drawings and Samples: In collaboration with the subcontracting Architect, establish and implement procedures for expediting the processing and approval of shop drawings and samples. Q. Reports and Project Site Documents: Record the daily progress of the Project in a daily log available to the ECG and the Eagle County Project Manager. Submit on a weekly basis written progress reports and summaries of meetings to the Eagle County Project and Manager, including information on the subcontractors' work, the actual cost vs. budgeted cost, actual construction point vs. projected schedule point, reasons for any discrepancies, the percentage of completion and the corrective actions to obtain compliance with time and cost schedules. R. Record Maintenance: Maintain at the Project site, on a current basis, records of all necessary contracts, shop drawings, samples, purchases, materials, equipment, maintenance and operating manuals and instructions and any other documents and revisions thereto which arise out of this Agreement or the Work. S. Project Completion: Determine Project Completion of designated portions of the Work and prepare for the Eagle County Project Manager a list of incomplete or unsatisfactory items and a schedule for their completion. ARTICLE 2 — COUNTY REPRESENTATIVE CADocuments and Settings\llarnetteTocal Settings\Ternporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 5 TuscaII.doc 2.1 The project is under the authority of the Eagle County Facilities Project Management Department, the Director of which, or his/her designee, shall be Eagle County's liaison with Contractor with respect to the performance of the Work. ARTICLE 3 - CONTRACT TIME 3.1 The work will commence upon County's issuance of a Notice to Proceed with Design Services. The Preliminary Design Documents, including schedule proposal and budget documents, shall be completed within 30 calendar days of Contractor's receipt of the Notice to Proceed. Once County accepts and approves the Preliminary Design Documents it shall issue a Notice to Proceed with Construction Services. Construction Services shall be substantially completed, and be ready for final payment in accordance with Article 6.3 hereunder, in the timeframe set forth in the County approved schedule, which in no case shall exceed 180 calendar days from'County's issuance of the Notice to Proceed with Construction Services. ARTICLE 4 - CONTRACT PRICE 4.1 County has established a cost not to be exceeded for the entire Work ("Guaranteed Maximum Price") based on consultation with the Contractor. The funds appropriated for this Project are equal to or in excess of the Guaranteed Maximum Price amount. 4.2 The Guaranteed Maximum Price is $550,000.00 and the Contractor acknowledges that the ECG is limited by this sum to construct the entire Work. The GMP amount was negotiated by Contractor and County and Contractor acknowledges that the GMP is $5,000 less than was initially proposed by Contractor in its proposal, set forth herein as Exhibit A. 4.3 Funds for this project have been budgeted and appropriated. Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to ECG nor shall any payment be made to Contractor for any Work done after December 31, 2007, without the written approval of ECG 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.). 4.4 In accordance with the conditions imposed in the appropriation or allocation authorizing the construction of the Project herein contemplated, the total cost for the Contractor's fee and all sums otherwise due the Contractor as the cost of construction, as set forth throughout this Agreement, are expressly subject to the foregoing limitations and nothing herein contained shall be construed or understood to commit the ECG to a total expense greater than that which is provided in the appropriation or allocation. The ECG agrees to provide evidence of the appropriation to the Contractor and will promptly provide notice of any change to the initial appropriation or allocation. Further, no funds appropriated or allocated for any other purpose shall be expended for this Project. The ECG agrees not to issue any directed Change Orders or Modifications which would cause the sums due the Contractor pursuant to this Agreement to exceed the appropriation or allocation for the Work nor shall the Contractor be required to undertake any acts that would cause sums due the Contractor to exceed the appropriation or allocation for the work unless mutually agreed to by the parties. No change order or other form of order or directive by the ECG, and no amendment to this Agreement, requiring additional compensable work to be performed, which work causes the aggregate amount payable under CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.OUtlook\ZZY3PVTB\7-26-07 Design -Build 6 TuscaII.doc 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 the Eagle County Project Manager that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under a remedy -granting provision in the Agreement. (In no event shall the failure to appropriate funds subject the ECG to any liability for costs, fees or services performed by Contractor or its subcontractors.) 4.5 CONTRACTOR'S FEE 4.5.1 In consideration of the performance of this Agreement, the ECG shall pay, as a Contractor's fee, Contractor eight percent (8%) of the Guaranteed Maximum Price, which amounts to forty four thousand dollars $44,000. The Contractor fee shall be included as a fixed sum in the GMP. 4.5.2. Contractor's fee shall include all overhead and profit. Overhead shall include Contractor's off site costs, including, but not limited to, those for project management, scheduling, estimating and support of the project. This amount is to include the Cost for key personnel and other off site office staff. Profit means before tax profit. On-site costs of construction will be considered a part of the costs of the work and these costs are not to be included in the fee. Costs to be included in the Contractor's Fee shall include: A. Salaries and other compensation of the Contractor's personnel stationed at the Contractor's principal office or offices other than the site office. B. Expenses of the General Contractor's principal office and offices other than the site office; C. Overhead and general expenses; D. The General Contractor's capital expenses, including interest on the General Contractor's E. Capital employed for the Work; F. General Contractor profit. 4.6 ADJUSTMENT IN FEE 4.6.1. Adjustments in Fee shall be made as follows: A. If, after the initial Guaranteed Maximum Price (GMP) is accepted by the ECG, and Eagle County's Project Manager directs additions to or other changes that increase the scope of Work, the Contractor's fee shall be eight percent (8%) excluding bonds and insurance for the additional work. 4.6.2. Abandonment or significant reduction in the scope or magnitude of the Project will not result in a negotiated reduction of the fee. The Contractor's fee will be based on the GMP and will not be subject to reduction if the Guaranteed Maximum Price can be reduced through the efforts of Contractor via procurement efforts or other cost saving construction methods. 4.7. GUARANTEED MAXIMUM PRICE CADocuments and SettingsTamette\Local Settings\Temporary Internet Files\Content.OUtlook\ZZY3PVTB\7-26-07 Design -Build 7 TuscaII.doc 4.7. 1. It will be the Contractor's responsibility to maintain a total GMP that does not exceed $550,000.00 4.7.2. The GMP shall include all of the Contractor's obligations to be performed pursuant to the terms of the Contract Documents and include, but not be limited to, all fees as set forth in Section 4.6 and the actual fees and costs as outlined below: A. Design/Architect service fees. B. Construction Services and Contractor fees which shall include: a. Actual wages paid for labor in the direct employ of the Contractor in the performance of the Work under applicable collective bargaining agreements, or under a salary or wage agreed upon by Eagle County's Project Manager and Contractor and including such with the ECG are/or other benefits, if any, as may be payable with respect thereto. If these wages are under applicable collective bargaining agreements the termination date of such agreements must be included. b. Actual salaries of Contractor's employees when stationed at the field office, in whatever capacity employed. c. Actual cost of pension contributions, hospitalization, vacations, medical insurance, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries or other remuneration paid to employees of the Contractor and included in the cost of the Work. d. The proportion of reasonable transportation, traveling and hotel expenses of the Contractor or of its officers or employees incurred in discharge of duties connected with the Work, if approved in advance by the Eagle County Project Manager. e. Actual cost of all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof. Also includes any material in excess of those actually installed but required to provide reasonable allowance for waste and spoilage. f. Actual payment made by the Contractor to subcontractors for work performed pursuant to contract under this Agreement. g. Actual cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workmen, which are employed or consumed in performance of the Work and costs less salvage value on such items used but not consumed which remain property of the Contractor. CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.OUtlook\ZZY3PVVTB\7-26-07 Design -Build 8 TuscaIl.doc h. Actual rental charge of all necessary machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from the Contractor or other, including installation, repairs and replacement, dismantling, removal, costs of lubrication, transportation and delivery costs thereof, at rental charges consistent with those prevailing in the area. i. Cost of the premiums for all bonds and insurance which are required by the Contract Documents. j. Permit fees, licenses, tests and royalties. k. Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressive and similar petty cash items in connection with the Work. 1. Cost of removal of all debris. in. Cost incurred due to an emergency affecting the safety of person and property, to the extent not compensated by insurance or otherwise. n. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Eagle County Project Manager. o. All costs directly incurred in the performance of the Work and not included in the Contractor's Fee. p. Cost of construction support activities such as Work items included in the condition of the contract and in the specifications unless they are provided by contractors. q. Indirect costs (General Conditions). r. Contractor's fee. s. Two (2) sets of as -built drawings. t. Three (3) complete bound sets of required operations and maintenance manuals and instructions. 4.7.5. The GMP includes General Conditions/General Requirements. The Contractor will submit for review and acceptance by County an itemized breakdown of the General Conditions/General Requirements costs for the Project. 4.7.6. Any project savings, below the Guaranteed Maximum Price, resulting from bidding of subcontractors and other costs of the work shall accrue to the County and Contractor equally. Shared project savings will not be applied to Allowances where all savings/overage will accrue solely to Owner. Shared project savings will not be applied to significant reduction in the scope of the Work directed by County to reduce overall project costs, all such savings to accrue solely CADocurnents and SettingA llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 9 TuscaIl.doc to County. Notwithstanding the foregoing, the Contractor's Fee will not be subject to reduction if the Guaranteed Maximum Price can be reduced through the efforts of Contractor via procurement efforts or other cost saving construction methods, or where a significant reduction in the scope of Work is directed by the County to reduce overall project costs. 4.7.8 Pursuant to the provisions of §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 County, 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 ECG that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under a remedy -granting provision in the Agreement. 4.8 CLAIMS FOR ADDITIONAL COST 4.8.1 The GMP constitutes the total compensation payable to Contractor for performing the Work, including design and construction. All duties, responsibilities, and obligations assigned to or undertaken by Contractor shall be at his expense without change in the GMP. The GMP may only be changed by a change order. Any claim for an increase in the GMP shall be based on written notice delivered to the Eagle County Project Manager within fifteen (15) days of the occurrence of the event giving rise to the claim and in all cases before proceeding to execute the Work, except in an emergency endangering life or property. No such claim shall be valid unless so made. Any approved change in the GMP resulting from such claim shall be authorized by Change Order. 4.8.2 Contractor claims for additional cost are limited to changes made by written order of the Eagle County Project Manager in the Work which cause the GMP to be exceeded. Adjustments in the GMP shall be made at the sole discretion of the County. Contractor's failure to discern conditions or circumstances that later increase their cost to complete the Project shall not be a basis for an adjustment to the GMP. ARTICLE 5 - LIQUIDATED DAMAGES 5.1 LIQUIDATED DAMAGES: Eagle County and Contractor recognize that time is of the essence of this agreement and that ECG expects the Facility to be substantially complete no later than 180 days from the issuance of the Notice to Proceed with Construction Services. They also recognize the delays, expense, and difficulties involved in proving a legal or arbitration preceding the actual loss suffered by Eagle County. if the Facility is not substantially complete within 180 days from the issuance of the Notice to Proceed with Construction Services. Accordingly, instead of requiring such proof, Eagle County, ECG and Contractor agree that there will be a fifteen day grace period; after which time, as liquidated damages (but not as a penalty) for delay beyond 180 days from the issuance of the Notice to Proceed with Construction Services, Contractor shall pay County one hundred seventy five dollars ($175.00) for each day that expires after that date until the Facility is complete. 5.1.1 If the Contractor believes that a contract extension should begranted due to delays caused by excusable, inclement weather, it may request a contract extension in writing from the CADocuments and Settings\Ilamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 10 TuscaII.doc Eagle County Project Manager. Eagle County shall thereon grant an extension equal, in Eagle County's reasonable opinion, in duration to the delay, if any, that was caused by the excusable, inclement weather. Excusable, inclement weather is snowfall, rainfall, freezing temperatures or excessive wind conditions, the degree or duration of which varies in excess of the average conditions expected, which is unusual for the particular time and place where the work is to be performed, or which could not have been reasonably anticipated by the Contractor. 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 the Eagle County Project Manager in writing. No time extension will be granted unless a determination is made by Eagle County, in their sole discretion that good cause exists for such extension. 5.3 All time extensions shall be made pursuant to paragraph 7 of the General Conditions. 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: ECG shall make monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Construction Agreement Payments, as provided below. All progress payments will be on the basis of the progress of the Work. ECG shall have the right to request and inspect supporting documentation for progress payments, including but not limited to receipts and invoices evidencing payments of charges associated with the Work. 6.2.1 Prior to Completion, progress payments will be in an amount equal to: 90% of the Work completed and materials and equipment not incorporated in the Work but delivered and suitably stored until fifty percent (50%) of the Work is performed, after which no additional retainage shall be withheld. Less in each case the aggregate of payments previously made. 6.3 FINAL PAYMENT: Upon final completion and acceptance in accordance with Paragraph 21 of the General Conditions, ECG 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 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 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 CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 1 I TuscaII.doc 7.1 In order to induce Eagle County to enter into this Agreement, Contractor makes the following representations: 7.2 Contractor has familiarized itself with the nature and extent of the Work, the initial design work shown in the Master Plan, the 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 it 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 expressly acknowledges its responsibility to provide for and thoroughly review all design and construction documents for constructability so as to avoid potential conflicts that may make it impossible to keep construction costs within the GMP. The purpose of this review is to minimize change orders due to conflicts in the Construction Documents to the greatest extent possible. 7.5 In cooperation with Eagle County, the Contractor and/or subcontracting Architect shall attend regularly scheduled meetings with the Eagle County Project Manager at the Project Manager's request to discuss progress, present material and information and respond to questions regarding the Project. The Contractor will be responsible for submitting to the Eagle County Project Manager, 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. 7.6 At the completion of the project and at Eagle County's request, the Contractor shall provide a complete set of as -built plans for all installed utilities, which shall be submitted to the Eagle County Project Manager at County's expense. 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 The General Conditions. 8.3 Exhibit A, The "Draft Proposal and Budget". 8.4 The Master Plan, as defined in Section 1.2(A) herein. CADocurnents and Settings\llarnette\Local Settings\Ternporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 12 TuscaIl.doc 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. The intent of the Contract Documents is to include all items, components and services necessary for the proper execution and completion of all the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings. The Contract Documents are listed in order of priority. If a conflict exists in the terms of any of the Contract Documents, the document with a higher priority shall control. ARTICLE 9 — OWNERSHIP AND USE OF DOCUMENTS AND ELECTRONIC DATA 9.1 All tracings, plans, specifications, estimates, reports, date and miscellaneous items, including electronic data, purported to contribute to the completeness of the Project, the Facility or the Work shall be delivered to and become the property of the County, upon County's request. 9.2 Basic survey notes, sketches, computations and other date prepared hereunder shall be made available to the County, upon request and become property of the County. 9.3 Use of the documents is limited to this project only. Reuse or modification of any such documents by County, without the subcontracting Architect's written permission, shall be at County's sole risk. 9.4 Copies of documents that may be relied upon by County are limited to the printed copies (also known as hard copies) that are signed or sealed by the Architect. Files in electronic media format or test, date, graphic, or other types that are furnished by the Architect to the County are only for convenience of the County. Any conclusions or information obtained or derived from such electronic files will be at the user's sole risk. When transferring documents in electronic media format, the Architect makes no representations as to precision, long term capability, usability or readability of the documents. ARTICLE 10 - SCHEDULE & SECURITY 10.1 Contractor shall submit its proposed Work schedule(s) to the Eagle County Project Manager for approval. Unless otherwise agreed, Contractor shall be allowed on-site for performance of Work only during the agreed upon time. Construction and staging schedules and plans shall be developed by Contractor and pre -approved by ECG in its' sole discretion prior to construction. ARTICLE 11- INDEPENDENT CONTRACTOR 11.1 It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship. Contractor shall be, and shall perform as, an independent contractor. No agent, subcontractor, subcontracting architect, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of Eagle County. The Contractor shall be solely and entirely CADocuments and SettingsTamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 13 TuscaII.doc responsible for its act and for the acts of the Architect, Contractor's agents, employees, servants and subcontractors during the performance of this Agreement. ARTICLE 12- CONTRACTOR'S LEVEL OF CARE 12.1 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 Eagle County Project Manager 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. ARTICLE 13 — CHANGES IN THE WORK 13.1 AMENDMENTS AND CHANGE ORDERS A. Eagle County, without invalidating this Agreement and without notice to any surety, may add to, deduct from or may alter the scope of the construction work beyond the approved design plan, the GMP and Contract Time being adjusted accordingly. All such Work shall be executed under the conditions of this Contract except that any claim for extension of the Contract Time caused thereby shall be adjusted by Change Order at the time of ordering such change. The parties further recognize that in making changes, the County may wish to make substantial increases or decreases to the Work to be performed and expressly agrees that in making any such changes, the same shall be permissible under the terms of this Agreement and all adjustments to the Contract Sum, Guaranteed Maximum Price and Contract Time shall be made in accordance with this Agreement. B. A Change Order is a written order to the Contractor signed by the Board of County Commissioners, issued after the execution of this Agreement, authorizing a change in the Work, the method or manner of performance, and adjustment in the GMP or the Contract Time. The GMP and the Contract Time may be changed only by Change Order. A Change Order signed by the Contractor conclusively establishes the Contractor's agreement therewith, including the adjustment in the GMP and the Contract Time. C. No extra work or change in the Contract Documents shall be made unless by a written Change Order approved by Eagle County Commissioners. No claim for any change to the Guaranteed Maximum Price or Contract Time shall be valid unless so ordered. No one other than the Board of County Commissioners, in writing, has authority to require an increase to the Guaranteed Maximum Price. D. The Contractor promptly proceed with the Work involved provided a written Change Order signed by the County is received. ARTICLE 14 — MISCELLANEOUS CADocuments and SettingsTamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 14 TuscaII.doc 14.1 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 this Agreement. 14.2 County 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. 14.3 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 specific 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. 14.4 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. 14.5 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, except as expressly set forth in the Contract Documents. 14.6 NOTICE: Notice shall be provided to the respective parties by being given to the persons at the addresses as follows, until changed by notice in writing: To COUNTY: Facilities Management Dept. Rick Ullom, Project Manager P.O. Box 850 - 590 Broadway Eagle, Colorado 81631 Phone: 970-328-8780 Fax: 970-328-8899 To CONTRACTOR: Tusca II, Inc. Attn: Larry R. La Mette, Jr. P.O. Box 4136 Grand Junction, CO 81502 Phone: 970-245-4071 Fax: 970-245-4072 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. CADocurnents and Settings\]lamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 15 TuscaII.doc 14.7 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. ARTICLE 15 - PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES 15.1 The Contractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services; or 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. 15.2 The Contractor shall verify or attempt to verify through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that the Contractor does not employ any illegal aliens. If the Contractor is not accepted into the Basic Pilot Verification Program prior to entering into a public contract for services, the contractor shall apply to participate in the Program every three months until the contractor is accepted or the public contract for services has been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at https://www.vis-dhs.com\employerregistration. 15.3 The Contractor shall not use the Basic Pilot Verification Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 15.4 If the Contractor obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor shall be required to: A. Notify the Subcontractor and the County within three days that the Contractor has actual knowledge that the Subcontractor is employing or contracting with an illegal alien; and B. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the Subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract 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. 15.5 The Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. 15.6 If a Contractor violates the prohibitions set forth in this Article 12, the County may terminate the contract for a breach of the contract. If the contract is so terminated, the Contractor shall be liable for actual and consequential damages to the County. Consequential damages are limited to those violations of this Article 12 and are inapplicable to any other violations of this Agreement. CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 16 TuscaII.doc IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. ATTEST Clerk to the Board of Commissioners STATE OF COLORADO ) ss: County of "County": EAGLE COUNTY AIR TERMINAL e ORPORATION, By and Through Its c ARD OF COMMISSIONERS Chairman R -.o 7--"— "Contractor": --"-" "Contractor": Tusca II, Inc. Print Name / 1 title VP On this 27th day of July, 2007, Larry R. LaMette, Jr., came before me, a notary public, Janey Joslin, known to me to be a Project Manager and Vice President of Tusca II, Inc., who acknowledged to me that he executed the fore oing document, that he executed it in that capacity, and that the same was the act oration. • y JqN to -/OIL S,, ID'�t-G Commission Expires CADocuments and Settings\llametteTocal Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build TuscaIl 17 (2).doc GENERAL CONDITIONS 1. Contractor shall provide and pay for labor, materials, equipment, tools, 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. County (ECG) 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 County. County 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 County. 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 County 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 control of County. In any event, County 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 County, 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 County immediate (as determined by the circumstances, but not exceeding 72 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 County 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 CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 18 TuscaII.doc 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 all 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 County, Contractor shall assume full responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify County 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 Contractor's 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 County, 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 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 County. 13. Contractor shall be solely responsible for the protection of the Work and material. Contractor shall have no claim against County because of any damage or loss to the Work (except that caused by negligence of County or those for whom County is responsible), 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 O\Documents and SettingsTamette\Local Settings\Temporary Internet Files\Content.OutlOok\ZZY3PVTB\7-26-07 Design -Build 19 TuscaILdoc defective Work. In addition, Contractor shall maintain such completed operations insurance for at least one year after final payment. 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; 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 this Agreement. 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 this Agreement 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 $500,000/$1,000,000 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 Property Damage form of policy. 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 County, will be permissible. CADocuments and SettingsUlamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 20 TuscaII.doc 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 Property Damage Liability: Each Accident or Occurrence: $1,000,000 Aggregate: $2,000,000 Insurance shall be placed jointly in the names of the County, Contractor, and any and all subcontractors, and any and all others obliged by contract with the County to do Work on this project, and, at the County's option, any other person or persons whom the County 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 County as trustee. The County 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 County shall be filed with the County prior to commencement of the Work. These Certificates shall contain provisions naming the County 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 canceled until at least thirty days prior written notice has been given the County. 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 County. Failure of the Contractor to comply with the foregoing insurance requirements shall in no way waive the County's rights hereunder. 15. The County, 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 General Liability and Property 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 County, or (b) insure the activities of his subcontractors in his own policy. 17. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless County, and Eagle County Board of Commissioners, employees and the agents of any of them, from and against claims, damages, losses and expenses, including but not limited to CADocuments and SettingsTamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 21 TuscaII.doc attorneys' fees, arising out of or resulting from performance 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. 18. Progress Payments: Not more often than once a month, Contractor shall submit to County 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 County 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 County, as will establish County's title to the material and equipment, and protect County'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 retention with respect to progress payments will be as stipulated in the Agreement. County 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. County shall, within ten days of recommendation of payment, pay Contractor the amount recommended. 19. 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 County at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens"). 20. Final Payment: Upon written notice from Contractor that the work is complete, County 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 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 County, and delivered all maintenance and operating instructions, guarantees, bonds, certificates of inspection, 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 County may reasonably require, together with complete and legally effective releases or CADocuments and SettingsTamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 22 TuscaII.doc waivers (satisfactory to County) of all liens arising out of, or filed in connection with the work. In lieu thereof, and as approved by County, Contractor may furnish receipts or releases in full; an affidavit 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 County 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 County to indemnify County against any lien. 21. Final payment shall not become due until Contractor submits to County 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. 21.1 The County shall not authorize final payment until all items on the punch list have been completed, the Architect issues its Final Certificate of Completion, the ECG has received a Certificate of Occupancy from the local jurisdiction, the Notice of Acceptance is issued, and the Notice of Contractor's Final Settlement Date is published and at least 30 days have expired with no claims filed. 21.2. Before the County may advertise, the Contractor shall: A. Deliver to the Eagle County Project Manager for review: 1. All guaranties and warranties; 2. A letter confirming that sales taxes from which the ECG is exempt have not been paid; 3. Three (3) complete bound sets of required operations and maintenance manuals and instructions; 4. Two (2) sets of as -built drawings; 5. To the extent not already furnished, one copy of all corrected Shop Drawings; 6. Satisfactory evidence that all payroll, material bills, and other indebtedness connected with the Work have been paid or otherwise satisfied; 7. A complete and final waiver and/or release of any and all lien rights and liens from each subcontractor of all tiers, material, men, supplier, manufacturer and dealer for all labor, equipment and material used or furnished by each on the Work; CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 23 TuscalI.doc 8. Consent of the surety to final payment; and 9. Any other documents required to be furnished by the Contract Documents. B. Demonstrate to the operating personnel of the ECG the proper operation and maintenance of all equipment. 21.3. Upon completion of the foregoing, the Contractor's Settlement shall be advertised in accordance with Colorado law. On the date of final settlement thus advertised, and after the Contractor has submitted a written notice that no claims have been filed, final payment and settlement shall be made in full. 21.4. Pursuant to C.R.S. §38-26-107, if any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed before payment in full of all sums due the Contractor, ECG shall withhold from the Contractor sufficient funds to insure the payment of such claim, until the same shall have been paid or withdrawn, such payment or withdrawal to be evidenced by filing a receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. 21.5. The making of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all claims by the ECG except those arising from: A. Unsettled Claims; B. Faulty or defective work appearing after Completion of the Work; C. Failure of the Work to comply with the requirements of the Contract Documents; or D. Terms of any warranties or special warranties required by the Contract Documents. 21.6. The acceptance of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all claims by the Contractor except those previously made in writing and separately identified by the Contractor as unsettled in the final Project Application for Payment. 21.7. All provisions of the Contract Documents including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. 22. 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 County to Contractor under the contract documents, nor any use or occupancy of the Work or any part thereof by County, nor any act of acceptance by County, nor any failure to do so, nor any correction of defective Work by CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 24 TuscaII.doc County shall constitute an acceptance of Work not in accordance with the contract documents or a release of Contractor's obligation to perform the Work in accordance with the contract documents. 23. Any work in accordance with the Contract Documents that the County finds improper, Contractor will correct said work in a timely manner so as not to delay completion of the project. 24. If Contractor defaults or neglects to carry out the Work in accordance with the Agreement and fails within a seven day period after receipt of written notice from the County to correct such default or neglect with diligence and promptness, the County may, without prejudice to other remedies, correct such deficiencies and Contractor shall be responsible for the cost of such correction. 25. 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. 26. Contractor shall promptly correct Work rejected by County as failing to conform to the requirements of the Agreement and Contractor shall bear the cost of correcting such rejected Work. 27. Contractor warrants and guarantees to County 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 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 County, and in accordance with County's written instructions, either correct such defective Work, or, if it has been rejected by County, 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, County may have the defective Work corrected or the rejected Work removed and replaced, and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. 28. The performance of the Work may be terminated at any time in whole, or from time to time in part, by County 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 County, 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 County may make, to assure the efficient, proper closeout of the terminated Work (including the protection of County's property). Among other things, Contractor shall, except as otherwise directed or approved by County: CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 25 TuscaII.doc A. stop 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 County, 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 County 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 County, settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts; and F. deliver to County, when and as directed by County, all documents and all property which, if the Work had been completed, Contractor would be required to account for or deliver to County, and transfer title to such property to County to the extent not already transferred. In the event of such termination, the Contractor shall be entitled to payment for the work performed prior to the termination date. 29. The selection of bidders shall be in accordance with the laws of Colorado. In the event of the Contractor's non-compliance with the Colorado labor laws, this Contract may be canceled, terminated or suspended, in whole or in part, without any liability to the ECG. 30. Contractor acknowledges that the Work is a public work financed in whole or in part by funds of the state of Colorado and/or a ECG, and pursuant to section Title 8-17-101, C.R.S. (1973) Colorado labor shall be employed to perform the Work in the extent of not less than eighty percent (80%) of each type or class of labor in the several classifications of skilled and common labor employed in the Work. For purposes of this provision, "Colorado labor" means "any person who is a resident of the state of Colorado at the time of employment, without discrimination as to race, color, creed, sex, age, or religion except when sex or age is a bona fide occupational qualification. 31. The Contractor agrees to comply with the letter and spirit of the Colorado Anti- discrimination Act of 1957, as amended, and other applicable laws respecting discrimination and unfair employment practices. Pursuant thereto, the following provision shall be contained in all ECG contracts or subcontracts: during the performance of this Contract, the Contractor agrees as follows: A. The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical disability, or age. The Contractor will take affirmative action to CADocuments and Settings\llamette\Local Settings\Ternporary Internet Files\Content.OUtlook\ZZY3PVTB\7-26-07 Design -Build 26 TuscaII.doc insure that applicants are employed and that employees are treated during employment, without regard to the above mentioned characteristics. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; lay-offs or terminations; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth provisions of this non-discrimination clause. B. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical disability, or age. 32. Colorado Statutes do not provide for any right of lien against public buildings. In lieu thereof, Title 38-26-107 ct seq. C.R.S., as amended, provides adequate relief for any claimant having furnished labor, materials, rental machinery, tools, equipment or services toward construction of the particular public work in that final payment may not be made to a Contractor until all such creditors have been put on notice by publication in the public press of such pending payment and given opportunity to stop payment to the Contractor in the amount of such claims. CADocuments and Settings\llamette\Local Settings\Temporary Internet Files\Content.Outlook\ZZY3PVTB\7-26-07 Design -Build 27 TuscaII.doc a� ..x.:.. P.O. Box 4136 Grand Junction, CO 81502 Phone (970) 245-4071 Fax (970) 245-4072 July 9, 2007 Eagle County Public Works Department 500 Broadway Eagle, CO 81631-0850 RE: Draft Proposal and Budget Project: Eagle County Hazardous Waste Facility Attn: Rick Ullom, Construction Manager (970) 328-8780, Rick.Ullom@eaglecounty.us Tusca II, Inc. proposes to supply Design -Build, Construction Management/General Contracting services for the above mentioned project. Refer to original construction documents dated 4/24/07 for base project scope of work. The project as defined is currently over budget. The current objective is to craft/negotiate a Design -Build solution that addresses the functional requirements of the project within the allotted budget. The overall scope of services to be provided include establishing the project scope of work, establishing the project budget with subsequent GMP, engineering design, site supervision, labor, and materials to perform the scope of work listed below: Scope of Work: Sitework Scope: Services and Equipment Provided by Tusca II, Inc.: 1. Rough/Final Grade for building to 10 Ft within perimeter of building 2. All plumbing piping (Propane Gas, Waste, Domestic Water Fire Protection) 3. 6" Fire line, wet system, served from existing fire pump Services and Equipment Provided by Owner: 1. Rough/Final Grade to 10 Ft outside the building 2. Trenching/backfill 3. Septic Tank 4. Reuse Existing Water Tank 5. Dumpsters — including recycling dumpsters if required 6. Fencing 7. ParkingNehicle traffic areas including materials (Stockpile of reclaimed asphalt — ground up) 8. Data Voice Cabling, Conduit, Trenching, and Backfill Tusca I1, Inc. Confidential 1 of 3 Attn: Rick Ullom RE: Proposal for CM/GC Design Build Services P.O. Box 4136 Project: Hazardous Waste Handling Facility Grand Junction, CO 81502 Phone (970) 245-4071 C.,., room—c.,..... Clarifications: 1. Eagle County to provide information for evaluation of utility company option with new power pole and closer transformer 2. Electrical Systems Summary: Original scope included; Exposed conduit is appropriate 3. Mechanical Systems Summary: Utilize evaporative cooling, propane fired indirect Make -Up Air Unit (MAU), Exhaust Fans (EF), counterbalanced relief dampers, operable windows 4. Standalone controls: MAU discharge air control, manually controlled EF with building relief 5. Building: Metal building, metal roof, metal to metal exterior wall construction, girt, purloin, insulation; 6. Ceilings: Breakroom, bathroom , office; exposed roof deck all remaining rooms 7. General Interior Walls: Decorative wood veneer or Drywall, 8. OfficeBreakroom: Wainscoat or Metal and Wainscoat combination 9. Flooring: To Be Determined; Scope per original drawings included 10. Plumbing Systems: Original WasteNent Scope included; provide instantaneous gas- fired water heater Subtotal ... $ 555,000.00 (Draft); See Budget Summary Attachment Please indicate your acceptance of the Lump Sum pricing, proposed fee, and associated general project scope of work as indicated above by signing in the appropriate signature block below. Please call 970-245-4071 or 970-640-5201 with questions. Thanks and have a great day. Sincerely, Tusca II, Inc. Larry R. LaMette, Jr., P.E. Vice President Tusca 11, Inc. Confidential 2 of 3 Ann: Rick Ullom RE: Proposal for CM/GC Design Build Services P.O. Box 4136 Project: Hazardous Waste Handling Facility Grand Junction, CO 81502 Phone (970) 245-4071 Fax (970)245-4072 Notice of Price and Project Scope Acceptance: Larry R. LaMette, Jr., P.E. Name �:i111 Contractor SI! 113fU1'C ( )\\ IM `'MU Vice President Y *Isle Date :sighed Title {ilii 4�i�-'r1L;(! Tusca Il, Inc. Confidential 3of3 O� n u 014