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HomeMy WebLinkAboutC11-277 B&B Excavating Construction Agreement LRWLL CUURTY, CO TEAK J SIMONTON 201116156 Pge= 84 0r ;54:54P1 0910112011 REC: $0.00 DOC; S II 1 11 1 . 11 11 111 ill 11 CONSTRUCTION AGREEMENT (UNIT PRICES) THIS ' uNSTRUCTION AGREEMENT ("Agreement") is made and entered into effective as of A,.4�' %Y 2011, by and between EAGLE COUNTY, a body corporate and politic, by and thro its Board of County Commissioners ("Owner"), whose address for purposes hereof is P.O. Box 850, 500 Broadway, Eagle, Colorado 81631, and Oldcastle SW Group, Inc. d/b /a B&B EXCAVATING, a company licensed to work in the State of Colorado ( "Contractor"), whose address for purposes hereof is P.O. Box 4870, Eagle, Colorado 81631, who agree as follows: 1. THE PROJECT 1.1 The construction project which is the subject matter hereof is generally described as follows: Beard Creek Road & Berry Creek Road Sidewalk Project (the "Project "). 12 A more complete description of the Project and a description of the applicable Project site (the "Site ") is provided by the Project Plans attached hereto as Exhibit "A ". 1.3 Capitalized terms that are not defined in this Agreement shall have the meanings ascribed to them in the General Conditions and (or) other Contract Documents as applicable. 2. THE CONTRACT DOCUMENTS 2.1 The "Contract Documents" consist of this Agreement, the Project Plans Exhibit "A ", General Conditions attached hereto as Exhibit "B ", Specifications Exhibit "C ", other documents and exhibits listed in this Agreement, and modifications issued after execution of this Agreement. If anything in the other Contract Documents is inconsistent with this Agreement, then conflicts or discrepancies shall be resolved in the following descending order of priority: (i) Change Orders or Amendments to this Agreement (ii) this Agreement (iii) the General Conditions; and (iv) Drawings and Specifications, with Drawings governing Specifications for quantity and location and Specifications governing Drawings for quality and performance. 22 The intent of the Contract Documents is to include all items reasonably necessary for the proper execution and completion of the Work. The Contract Documents are complementary and what is required by any one shall be binding as if required by all. Based on Contractor's careful review of the Contract Documents, Contractor acknowledges that the Contract Documents require the construction of the completed Project in accordance with the terms hereof. 2.3 If, while performing the Work, Contractor encounters latent and (or) concealed subsurface conditions at the Site that (i) materially and adversely impact the Work and (ii) differ materially from those conditions indicated or reasonably inferable from the Contract Documents ( "Adverse Conditions "), then Contractor shall give Owner prompt notice before such conditions are disturbed and in no event later than seven (7) days after first observance of such conditions. Owner or a professional retained by Owner shall promptly investigate such conditions and advise Owner and Contractor whether, in its opinion, the conditions at the Site constitute new adverse conditions from those indicated in the Contract Documents. If Owner and Contractor agree upon the extent, if any, to which new adverse conditions result in a change to the date for achieving Substantial Completion, then the parties will execute an appropriate Change Order. Change Orders relating to adjustments in the Base Bid Price shall be made as provided in Sections 5.4, 5.5 and 5.6 hereof with no adjustment in the amount of the individual Unit Prices. If the parties are unable to agree on the impact, if any, to the date for achieving Substantial Completion, then Contractor may make a 1 Cl/4 -1 claim therefor in accordance with Section 7. Notwithstanding the foregoing, no adjustment in the date for achieving Substantial Completion shall be allowed to the extent that Contractor knew of such adverse condition(s) prior to the date of this Agreement. 3. THE WORK OF THE CONTRACT DOCUMENTS 3.1 Contractor shall perform all the Work required by the Contract Documents or reasonably inferable therefrom, for the complete construction of the Project in accordance with the Contract Documents. Contractor shall provide and furnish all materials, supplies, equipment, tools, implements, all other facilities, and all other labor, supervision, security, transportation, utilities, storage, appliances and all other services as and when required for or in connection with the complete construction of the Project. 3.2 If the Work is taking place on property owned by other federal, state or local governmental entities, or a public utility or other third party, Contractor shall comply with any additional terms and conditions required by Applicable Laws and(or) Applicable Permits. 4. DATE OF COMMENCEMENT; PROSECUTION OF WORK; MILESTONES 4.1 The Date of Commencement of Work shall be the date set forth in a written Notice to Proceed for the Project. The Contract Time shall be measured from the date set forth in the Notice to Proceed. 4.2 Contractor shall diligently and continuously prosecute the Work and achieve the milestones and Substantial Completion date as set forth on the Project schedule ( "Project Schedule ") attached hereto as Exhibit "D ". No modifications shall be made to the Project Schedule unless a written Change Order is executed by Owner in accordance with the Contract Documents. 4.3 Contractor shall employ all such additional labor services and supervision, including such extra shifts and overtime, as may be necessary to maintain progress in accordance with the Project Schedule and achieve Substantial Completion within the Contract Time, all without an increase in the Unit Prices. Should it appear to Owner at any time that Contractor is in danger of failing to comply with the Project Schedule, Contractor shall cause its employees, Subcontractors and all other parties covered by the Contract Documents to perform and work at hours and on days, in addition to the normal working hours and working days, whatever overtime work or shift work is necessary to comply with the Project Schedule and with no adjustment to the Unit Prices or Base Bid Price. 5. BASIS FOR PAYMENT 5.1 Upon and subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 hereof, Owner shall pay Contractor, for Contractor's performance of the Work under the Contract Documents, the total amount of One Hundred Sixty One Thousand Nine Hundred Thirty Four Dollars and Four Cents ($161,934.04) ( "Base Bid Price "). 5.2 The Base Bid Price (which is based upon Unit Prices) includes, without limitation, the entire amount of overhead and profit payable to Contractor in connection with the Work under the Contract Documents. Contractor shall not have the right to, nor shall it seek to recover, any additional compensation for overhead and profit. 5.3 Contractor acknowledges that Owner is a tax exempt entity. 5.4 The Base Bid Price, as set forth above, was calculated by the parties based upon the Bid Tabulation attached as Exhibit "E" (collectively, the "Unit Prices "): 11713\9000\1169297 2 5.5 The quantities set forth in Section 5.4 are based on good faith estimates initially agreed to by Owner and Contractor. Owner and Contractor both acknowledge and agree that the actual quantity of each described item (which collectively constitute all of the Work) may differ as the Work is performed and completed and that if the actual quantity of an item so described is determined (as provided in Section 5.6 below) to be different from that so stated in Section 5.4, then Owner and Contractor shall agree to and execute a Change Order indicating such change and the resultant adjustment in the Base Bid Price. 5.6 The quantity of each item actually incorporated into the Work shall be recalculated as applicable, at any time and from time to time, but in any case upon Substantial Completion of the Work. The applicable quantities may be so determined by the mutual agreement of Owner and Contractor. In the event of a dispute the parties shall use the dispute resolution paragraph 5.6 in the General Conditions. 6. CHANGES IN THE WORK 6.1 Owner, without invalidating the Contract Documents, may order Changes in the Work consisting of additions, deletions or other revisions of the Work, with the Base Bid Price and(or) the Contract Time being adjusted accordingly (individually a "Change" and collectively "Changes "). All such Changes in the Work shall be authorized by Change Order, and shall be performed pursuant to the Contract Documents. Any such Change may result in a change in the quantities set forth in Section 5.4 hereof, but shall be priced in accordance with the Unit Prices. 6.2 Within ten (10) days of receipt of an order for Change(s) from Owner, Contractor shall prepare and submit to Owner, a detailed breakdown (with all supporting documentation) sufficient to enable Owner to determine the effect on the Base Bid Price, if any, and the effect on the Project Schedule, if any, of a proposed Change. Such breakdown and documentation shall reflect all labor, services and materials altered, added, omitted or changed by the proposed Change(s), with the detailed breakdowns, estimates and verification of prices by Contractor and each applicable Subcontractor (but with no change in the Unit Prices). Contractor shall not have the right to, nor shall it seek to recover, any additional compensation for overhead and profit. 6.3 Upon issuance of a Change Order by Owner, Contractor and its Subcontractors will perform the Change(s) in the Work incorporated by the Change Order. 6.4 If there is a disagreement regarding the amount of adjustments to the Base Bid Price and(or) Contract Time in a Change Order, Base Bid Price (subject to the provisions and conditions of Section 6.5 below) and the Contract Time shall be adjusted unilaterally by Owner by the amounts shown in the Change Order executed by Owner. Contractor may oppose any such unilateral decisions of Owner as the Contract Time only by utilizing the dispute resolution provisions set forth in Section 5.6 of the General Conditions and without any stoppage of the Work. As to any adjustments to the Base Bid Price set forth in said Change Order, the same shall be ultimately calculated as set forth in Sections 5.4, 5.5 and 5.6 hereof (without any change in each stated Unit Price). 6.5 The amount of any adjustments to the Base Bid Price resulting from a Change Order approved by Owner shall be determined by Owner based upon each stated Unit Price set forth in Section 5.4 above. 6.6 Notwithstanding and pending resolution of any dispute regarding any adjustment in the Base Bid Price or Contract Time with respect to a Change, Contractor shall promptly proceed with Work required by any Change Order issued by Owner. 11713\9000\1169297 2 6.7 When a Change Order request requires immediate commencement of Work described in the Change Order, as specifically set forth in a written direction from Owner, then Contractor shall submit a rough order of magnitude cost estimate within seven (7) days of commencing such Work. 7. CLAIMS RELATING TO TIME 7.1 If Contractor contends that any order from Owner or other event or occurrence shall cause Change(s) in the Work entitling Contractor to adjustment to the Base Bid Price (as the same relates to quantity, but not including Unit Prices, and subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 hereof) or Contract Time, Contractor shall: 7.1.1 Provide a written Notice of Claim to Owner within five (5) days after Contractor's knowledge of the event upon which the Claim is based. Such Notice of Claim must clearly identify the order or event which is relied upon and contain a clear statement of why it constitutes a basis for adjustment. 7.1.2 Provide a written statement of Claim to Owner within five (5) days after Contractor makes the Notice of Claim, which statement shall include a clear, concise recital of the basis upon which the Claim is asserted, including a designation of the provision or provisions in the Contract Documents on which Claim is based and the amount of time and compensation claimed. All costs, expenses, damages and extensions of time claimed as a result of this alleged change shall be described in reasonable detail under the circumstances together with complete supporting documentation. 7.1.3 If any adjustment to the Contract Time is sought, Contractor shall also fully comply with the requirements of Section 5.3 of the General Conditions. 7.1.4 Contemporaneously document in writing and provide to Owner (with time /date stamped photographs and other backup documentation, as appropriate) the field conditions relevant to any requested Change(s). 7.2 Owner shall review any timely Claim submitted by Contractor. In conducting its review, Owner shall have the right to require Contractor to submit such additional or supporting documents, data and other information as Owner may require. If, upon completion of such review, Owner determines a Change is justified, Owner shall issue a Change Order amending the Base Bid Price (subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 hereof) or Contract Time or both, as appropriate. Otherwise, Owner may determine not to so issue a Change Order amending the Base Bid Price (subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 hereof) or Contract Time. If Contractor disputes the determination made by Owner, Contractor shall notify Owner in writing within five (5) days following receipt of the determination and permit Owner ten (10) additional days to reconsider and, if it deems it appropriate, modify its decision. If Owner does not modify its decision and Contractor still disputes Owner' s determination, then Contractor may pursue the dispute resolution procedures set forth in Section 5.6 of the General Conditions. Notwithstanding the foregoing, the parties acknowledge and agree that Contractor shall not be entitled to a Change Order unless Contractor submits a written Notice of Claim to Owner and otherwise follows the processes and procedures set forth in this Section 7 within the time limitations set forth in this Section 7, time being of the essence with respect thereto. 11713\9000\1169297 2 7.3 No Change in the Work, whether by alteration or addition to the Work, shall be the basis of an addition to the Base Bid Price (subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 hereof) or a change in the Contract Time unless and until such alteration or addition has been authorized by a written Change Order executed and issued in accordance with and in strict compliance with the Contract Documents. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders or express or implied acceptance of alterations or additions to the Work, and no claim that Owner has been unjustly enriched by any alteration or addition to the Work, whether or not there is in fact any such unjust enrichment, shall be the basis for any Claim for an increase in the Base Bid Price or Change in the Contract Time. In the event that a written Change Order is not timely executed and issued in accordance with and in strict compliance with the Contract Documents, time being of the essence with respect thereto, Contractor's rights with respect to such Claims shall be deemed waived. 8. SUBCONTRACTS AND OTHER AGREEMENTS 8.1 Those portions of the Work that Contractor does not customarily perform with Contractor's own personnel shall be performed under subcontracts and (or) by other appropriate agreements with Contractor (individually a "Subcontract" and collectively "Subcontracts "). 8.2 All Subcontracts shall conform to the applicable payment provisions of this Agreement. Owner shall have the right to review and approve each form of Subcontract. 9. ACCOUNTING RECORDS 9.1 Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under the Contract Documents, and all such accounting and control systems shall be satisfactory to Owner. Owner and Owner's accountants shall be afforded access to, and shall be permitted to audit and copy Contractor's records, books, correspondence, instructions, drawings, receipts, Subcontracts, purchase orders, vouchers, memoranda and other data relating to the Contract Documents and Contractor shall preserve these documents for a period of not less than three (3) years after final payment, or for such longer period as may be required by law. 10. PAYMENTS 10.1 PROGRESS PAYMENTS: Based upon monthly Applications for Payment submitted in accordance with Article 10 of the General Conditions, Owner shall make monthly progress payments on account of the Base Bid Price and as provided in the Contract Documents. All progress payments will be on the basis of the progress of the Work. Owner 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. 10.2 The period covered by each Application for Payment shall be one calendar month beginning on the first of each month and ending on the last day of the month. 10.3 Each Application for Payment shall be based upon the Unit Prices and Base Bid Price and otherwise in accordance with the Contract Documents. Each Application of Payment shall show actual quantities incorporated into the Project for each portion of the Work as of the end of the period covered by such Application for Payment. 10.4 Prior to Completion, progress payments will be in an amount equal to 95% of the Work completed. The withheld percentage of the contract price shall be retained until the Agreement is completed satisfactorily and finally accepted by the public entity. II 11713 \9000 \1169297.2 10.5 In taking action on Contractor's Applications for Payment, Owner shall be entitled to rely on the accuracy and completeness of the information furnished by Contractor and shall not be deemed to represent that: (i) Owner has made a detailed examination, audit or arithmetic verification of the documentation submitted by Contractor; (ii) Owner has made exhaustive or continuous on -site inspections of the Work; or (iii) Owner has made examinations to ascertain how or for what purposes Contractor has used amounts previously paid on account of the Base Bid Price. 11. FINAL PAYMENT 11.1 Upon final completion and acceptance in accordance with the Contract Documents, Owner shall pay the remainder of the Base Bid Price. The final payment shall not be made until after final settlement of this Agreement 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. Owner shall make a final settlement in accordance with C.R.S. 38 -26 -107 within sixty days after the contract is completed satisfactorily and finally accepted by Owner. 11.2 Owner may withhold from any payments due to Contractor, to such an extent as may be necessary to protect the Owner from loss, because of defective work or material not remedied or the failure of Contractor to carry out the Work in accordance with this Agreement. 12. TERMINATION OR SUSPENSION 12.1 The Contract Documents may be terminated as provided in Article 14 of the General Conditions. 12.2 The Work may be suspended by Owner as provided in Article 14 of the General Conditions. 13. REPRESENTATIVES 13.1 Owner's representative is Ben Gerdes, Sr. Staff Engineer. 13.2 Contractor's representative is Jerome Chwalek. 13.3 Neither Owner's nor Contractor's representative shall be changed with less than ten (10) days' prior written notice to the other party. 14. INDEPENDENT CONTRACTOR 14.1 In performing its obligations under this Agreement, Contractor shall be deemed an independent contractor and not an agent or employee of Owner. 15. AMENDMENTS 15.1 Any amendments or modifications to this Agreement or the Contract Documents shall be in writing and signed by both parties. 16. SEVERABILITY 16.1 If any term, covenant or condition of the Contract Documents shall to any extent be deemed invalid or unenforceable, then the remainder of the Contract Documents shall not be affected thereby, and each term, covenant and condition of the Contract Documents shall be valid and enforceable to the fullest extent permitted by law. 11713 \9000 \1169297.2 17. SURVIVAL 17.1 Any indemnity, warranty or guaranty given by Contractor to Owner under the Contract Documents shall survive the expiration or termination of the Contract Documents and shall be binding upon Contractor until any action thereunder is barred by the applicable statute of limitations or as otherwise expressly provided on the Contract Documents 18. INTEGRATION 18.1 The Contract Documents constitute the entire agreement between the parties hereto with respect to the matters covered thereby. All prior negotiations, representations and agreements with respect thereto not incorporated in such Contract Documents are superseded by this Agreement and the Contract Documents. 19. MISCELLANEOUS PROVISIONS 19.1 Contractor represents and warrants that it holds a license, permit or other special license, as required by law, to perform the Work required under the Contract Documents and shall keep and maintain all such licenses, permits and special licenses in good standing and in full force and effect at all times while Contractor is performing the Work required under the Contract Documents. 19.2 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 related hereto or if suit otherwise is brought in law or in equity 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. 19.3 Contractor shall not assign, transfer or encumber, in whole or in part, its interest under the Contract Documents without the prior written consent of Owner, which consent Owner may withhold in its sole discretion. 19.4 In performing the Work, Contractor shall determine the applicability of, and shall ensure that the means and methods of construction comply with all applicable laws and applicable permits. 19.5 Owner shall provide to Contractor at the Site a quantity of 2 sets of "for construction" Drawings and Specifications. Owner shall not be responsible for the shipping or courier costs related to the delivery of such plans to Contractor's or any Subcontractor's place of business. Contractor shall distribute the Drawings and Specifications to Contractor's staff and Subcontractors for their use in connection with the Project. Subsequent changes and refinement to the Drawings and Specifications will be issued by the Owner to Contractor and Contractor shall so distribute the same. If single sheets of Drawings and Specifications are required to be re- issued as part of the refinement of the Drawings and Specifications, Owner shall pay for the reasonable reproduction costs of such sheets in a quantity necessary to provide copies to Contractor's staff and the Subcontractors impacted by the changes in the Drawings and Specifications. Notwithstanding the foregoing, Owner may provide electronic copies of any such Drawings and (or) Specifications. Owner's costs described in this Section shall not be included in the Cost of the Work or subject to the Base Bid Price. 20. EXHIBITS 20.1 The following Exhibits are attached hereto and incorporated herein by this reference and are part of the Contract Documents: 11713 \9000 \1169297.2 Exhibit "A" Project Plans Exhibit "B" General Conditions Exhibit "C" Project Specifications Exhibit "D" Project Schedule Exhibit "E" Unit Prices/Bid Tabulation 21. INSURANCE 21.1 Contractor shall purchase and maintain such insurance as will protect it from claims set forth below which may arise out of or result from Contractor's operations under the contract, whether such operations be by itself, or by any of its subcontractors, 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. 21.2 Insurance coverages shall be as follows: 21.2.1 Coverage for 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; 21.2.2 Coverage for claims for damage because of bodily injury, occupational sickness or disease, or death of its employees, and claims insured by usual personal injury liability coverage; 21.2.3 Coverage for claims for damage because of bodily injury, sickness or disease, or death of any person other than its employees, and claims insured by usual personal injury liability coverage; and 21.2.4 Coverage for claims for damages because of injury to or destruction of tangible property, including loss of use resulting therefrom. 21.2.5 Coverage for Contractor's Liability Insurance issued to and covering the liability for damage imposed by law upon Contractor and each subcontractor with respect to all Work performed by them under this Agreement. 21.2.6 Coverage for Contractor's Protective Liability Insurance issued to and covering the liability for damages imposed by law upon Contractor and each subcontractor with respect to all Work under this Agreement performed for Contractor by subcontractors. 21.2.7 Coverage for Completed Operations Liability Insurance issued to and covering the liability for damage imposed by law upon 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. 21.2.8 Comprehensive Automobile Insurance shall be carried in the amount of $1,000,000/$2,000,000 for bodily injury and $1,000,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be 11713 \9000 \1169297.2 Comprehensive General and Automobile Bodily Injury and Property Damage form of policy. 21.2.9 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. 21.2.10 Insurance covering claims for damages to persons or property required above shall be in the following minimum amounts: Bodily Injury Liability: Each Person: $2,000,000 Each Accident or Occurrence: $2,000,000 Property Damage Liability: Each Accident or Occurrence: $2,000,000 Aggregate: $4,000,000 21.2.11 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. 21.3 Subcontractor's Insurance: Before permitting any of its subcontractors to perform any Work under this Agreement, Contractor shall either (a) require each of its subcontractors to procure and maintain during the life of its subcontracts, Subcontractor's Liability and Property Damage Insurance of the types and in the amounts as may be applicable to its Work, which type and amounts shall be subject to the approval of the Owner, or (b) insure the activities of its subcontractors in its own policy. 21.4 Certificates of Insurance: Certificates of Insurance acceptable to the Owner shall be filed with the Owner upon execution of the Agreement. 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 requirement shall in no way waive the Owner's rights hereunder. 22. GOVERNMENT CONTRACTS 11713\9000\1169297 2 22.1 If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. § 8- 17.5 -101, et seq., regarding Illegal Aliens — Public Contracts for Services, and this Contract. By execution of this Contract, Contractor certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Contractor will participate in the Basic Pilot Verification Program in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Contract. 22.2 Contractor shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (ii) 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. 22.3 Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security. 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 22.4 The Contractor shall not use either the Basic Pilot Verification Program procedures to undertake pre- employment screening of job applicants while the public contract for services is being performed. 22.5 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: (i) Notify the subcontractor and Owner within three days that the Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) 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. 22.6 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 established in C.R.S. § 8- 17.5- 102(5). 11713 \9000 \1169297.2 22.7 If a Contractor violates these prohibitions, Owner may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor shall be liable for actual and consequential damages to Owner as required by law. 22.8 Owner will notify the office of the Colorado Secretary of State if Contractor violates this provision of this Contract and Owner terminates the Contract for such breach. 23. SPENDING LIMITATIONS Notwithstanding anything to the contrary contained in this Agreement, Owner shall have no obligations under this Agreement, nor shall any payment be made to Contractor in respect of any period after any December 31 of each calendar year during the term of this Agreement, without an appropriation therefore by the Owner in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25 of Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. §29 -1 -101 et seq.), and the TABOR Amendment (Constitution, Article X, Sec. 20). [Rest of Page Intentionally Left Blank] 11713\9000\1169297 2 OWNER: EAGLE COUNTY, OLORADO By .nd • ough its B, ' � . rd of County C mmissl s ners , By: Ai J. n Stavney,' airman Attest: Clerk to the Board of County Commissio ° " ' • 026,..... 4 � ` `� t ;1 ;tS9ilItIPF `t o� CONTRACTOR: c. c Sz°_ B &B EXCAVATING a _, ` -~ y �'� COZo too CD�'OQ4lw 9 �° ° E 0 ' ���` Iv) By: 7,19f,........-,,Z/4...,------ Its: , i �� - G�/ E STATE OF COLORADO) ) SS. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me by - a✓S of B &B Excavating this ,$ day of Athfgg , 2011. 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DEFINITIONS 1.1 The Contract Documents include the following defined terms: 1.1.1 "Modification" means (i) a written amendment to the Contract Documents signed by Owner and Contractor, or (ii) a Change Order. Except as specifically set forth in the Agreement, the Contract Documents do not include other documents. The Contract Documents may be amended or modified only by a Modification. The Contract Documents only create a contractual relationship between Owner and Contractor. 1.1.2 "Work" means the construction and services required by the Contract Documents or reasonably inferable therefrom, for the complete construction of the Project in accordance with the Contract Documents, and includes all other labor, materials, equipment and services provided or to be provided by Contractor to fulfill Contractor's obligations under the Contract Documents. 1.1.3 "Project" is the total construction of which the Work performed under the Contract Documents is the whole. 1.1.4 "Drawings" are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, including plans, elevations, sections, details, schedules and diagrams. 1.1.5 "Specifications" are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. 1.1.6 "Applicable Laws" means all applicable laws, codes, building codes, rules, regulations, ordinances and judgments, and orders of any court, arbitrator or governmental agency or authority as may be in effect from time to time. 1.1.7 "Applicable Permits" means all applicable waivers, franchises, variances, permits, authorization, licenses or orders of or from any govemmental agency, body or instrumentality, court or other body having jurisdiction over the Project, which are required for performance of the Work. 1.1.8 "Bankruptcy" means: (i) a general assignment for the benefit of creditors; (ii) the commencement of proceedings under Title 11 of the United States Code or any other bankruptcy or insolvency of debt or liquidation law or statute of the federal government or any state government; or (iii) the adjudication as bankrupt or insolvent under any law or statute or the application for any action which indicates its approval, consent to, or acquiescence in the appointment of a trustee or receiver with respect to the estate or assets, or any portion thereof. • 2. THE SITE DOCUMENTS 2.1 Contractor represents that it has visited the Site, is familiar with local conditions under which the Work is to be performed, and has correlated personal observations with the requirements of the Contract Documents. Contractor and each Subcontractor shall evaluate and satisfy themselves as to the conditions and limitations under which the Work is to be performed, including without limitation: (i) the location, condition, layout, nature of the Site and surrounding areas; (ii) generally prevailing climatic conditions including, without limitation, precipitation, ice, snow and mud; and (iii) available labor supply and cost 2.2 All Drawings, Specifications and other documents prepared by Owner are and shall remain the property of Owner and shall not be used by Contractor or its Subcontractors without the prior written consent of Owner, which consent may be withheld by Owner in its sole and absolute discretion. 3. OWNER 3.1 [Intentionally Deleted]. 3.2 If Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents, persistently fails to carry out Work in accordance with the Contract Documents, or fails to follow Owner's instructions, Owner may issue a written order to Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. Owner's exercise of the right described in this Section 3.2 shall not give rise to any extension of the Contract Time or adjustment to the Base Bid Price or the Unit Prices, nor shall Owner's rights and remedies against Contractor under the Contract Documents be limited by the exercise of such right. 3.3 If Contractor defaults in the performance of its obligations under the Contract Documents, or fails to cure the cause of a stop work order issued pursuant to Section 3.2, and fails within a seven (7) day period after receipt of written notice from Owner to commence and continue correction of such default with diligence and promptness, Owner may correct such deficiencies without prejudice to other remedies available to Owner. In such case, an appropriate Change Order shall be issued deducting from payments then or thereafter due Contractor the cost of correcting such deficiencies. The cost of correcting such deficiencies set forth in said Change Orders shall be calculated based upon the Unit Prices, plus Owner's actual, out -of- pocket expenses plus a surcharge equal to five percent (5 %). 3.4 Owner, and all of its employees and agents, shall have the right to full access and use of the Site. Such use shall not constitute acceptance of the Work or any part thereof, or waive any of Owner's rights or remedies under the Contract Documents. 3.5 Except as specifically provided in the Contract Documents, Owner shall not be responsible for or have control over construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work 3.6 Owner has the authority to reject the Work, or any portion thereof, which does not conform to the Contract Documents. 2 4. CONTRACTOR 4.1 Contractor shall perform the Work in strict accordance with the Contract Documents. Contractor shall not be relieved of any obligations set forth in the Contract Documents either by activities or duties of Owner or any consultant(s), or by tests, inspections or approvals required or performed by persons other than Contractor. 4.2 Contractor shall maintain and deliver to Owner a daily job report of work performed, notable events and incidents, weather conditions, Subcontractors' performance, any deficiencies (and the corrective actions taken), delays, and other information that Owner may reasonably request 4.3 Contractor shall supervise and direct the Work, using Contractor's best skill and attention Contractor shall be solely responsible for and shall have control over constriction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract Documents, including, without limitation, providing the following: 4.3.1 Manage and direct the Work in all particulars and coordinate the Work with the activities and responsibilities of Owner in order to complete the Project in accordance with the Contract Documents. 4.3.2 Supervise, coordinate and direct the Work, continuously monitor the performance of the Work, and inspect the quality and workmanship of the Work for any defects and (or) deficiencies in the Work. Contractor shall enforce strict discipline and good order among its employees and Subcontractors and shall require Subcontractors to do the same. 4.3.3 Fumish, provide and pay for all supervision, labor, materials, fabrications, assemblies, construction equipment, machinery, tools, water, heat, utilities, transportation and all other facilities and services necessary for the proper execution and completion of the Work. 4.3.4. Attend and participate in the meetings of Owner and Contractor at a specific date, time and place established by Owner, and to deliver to all attending parties current reports on the following items: Progress payment requests; Requests for information — current log; Change requests — current log; Submittals — current log; Change orders — current list; Claims — Pending Claims; Notices of Claims and any plans to file Claims (if applicable); Project progress report; Job problems and Quality control review. 4.3.5 Provide regular monitoring, on at least a monthly basis, of the Project Schedule as construction progresses. Identify potential variances between schedules and probable completion dates. Review the Project Schedule for Work not started or incomplete and implement adjustments in the Project Schedule to meet the required completion date(s). 4.3.6 Be responsible for all cutting, fitting or patching that may be required to complete the Work or to make its several parts fit together properly. Contractor shall not cut or otherwise alter the work of Owner or of any separate contractor. 4.3.7 Keep the Project and Site free from accumulation of waste materials or rubbish caused by Contractor's and Subcontractors' operations. Contractor shall pay any waste disposal or waste transportation fees, and at the completion of the Work, shall promptly remove all tools, 3 construction equipment, machinery and surplus materials to the extent that title to such items has not been vested in Owner pursuant to the Contract Documents. 4.3.8 Arrange for tests, inspections and approvals as required by the Contract Documents and (or) by Applicable Laws. If the Contract Documents and(or) Applicable Laws require any portion of the Work to be inspected, tested or approved, Contractor shall give Owner at least twenty -four (24) hours notice of its readiness so Owner may observe such inspecting, testing or approval. If Owner determines that any Work requires special inspection, testing or approval not already required by the Contract Documents and (or) Applicable Law, Owner may instruct Contractor to order such special inspection, testing or approval. 4.3.9 As applicable, start-up and test successfully all systems and equipment included in the Work and comply fully with each manufacturer's specifications and instructions. 4.3.10 [Intentionally Omitted.] 4.3.11 Confine operations at the Site to area(s) permitted by Applicable Law, Applicable Permits and the Contract Documents. 4.3.12 Control the blowing or spreading of dust, smoke, dirt, mud and refuse from the Work 4.3.13 Remove all water, and (or) mud interfering with the Work 4.3.14 Perform the Work so as not to interfere with or disrupt the business operations of any adjacent businesses and (or) recreation areas. 4.3.15 Limit the activities of all parties under its control to the area(s) designated by Owner, and protect and prevent damage or disturbance to any trees or other vegetation outside of the clearing limits, as shown on the Contract Documents. 4.3.16 Owner will obtain easements from Berry Creek Metropolitan District for the side walk improvements. Any other easements needed for staging or completion of the Work shall be the responsibility of and obtained by Contractor. 4.3.17 Contractor will locate all underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any easements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems which shall collectively be known as the "Underground Facilities" prior to performing the Work. Unless it is otherwise expressly provided in the General Conditions: 4.3.17.1 Owner shall not be responsible for providing any information to Contractor regarding Underground Facilities; and 4.3.17.2 the cost of all of the following will be included in the Base Bid Price, and Contractor shall have full responsibility for a. locating all Underground Facilities b. coordination of the Work with the owners of such Underground Facilities, including Owner, during construction, and 4 c. the safety and protection of all such Underground Facilities and repairing any damage thereto resulting from the Work. 4.3.18 Owner shall provide data for the surveyor to establish reference points for construction which in Owner's judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to Owner whenever any reference point or property monument is lost or destroyed, requires relocation because of necessary changes in grades, location, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel. 4.4 Unless otherwise provided in the Contract Documents, Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work. 4.5 Contractor shall replace on -Site supervision personnel as- needed upon performance and based upon Owner's assessment that the Project is not adequately staffed or the Work is not adequately progressing. 4.6 Contractor shall at all times maintain a full -time management and supervisory staff of competent persons at the Site to coordinate and provide general direction of the Work and progress of Subcontractors on the Project. 4.7 Contractor agrees that only competent and skilled workmen who satisfactorily perform their duties shall" be employed on the Project and Contractor shall ensure that there are an adequate and competent supply of skilled workmen and materials as necessary to carry out the Work on a continuous basis. 4.8 Contractor shall acknowledge receipt of materials and equipment purchased by or on behalf of Owner for installation pursuant to the Contract Documents and shall provide storage and protection for such materials and equipment. Upon the receipt of delivered materials (including fabrications, assemblies and equipment, as applicable), Contractor shall ascertain whether they comply with the requirements of the Contract Documents. Contractor shall reject all nonconforming materials and have all nonconforming materials immediately removed from the Site. All materials delivered to the Site shall be stored and handled so as to preclude inclusion of any foreign substance(s), adulteration thereof and to prevent any damage thereto. 4.9 Where trade or brand names appear in the Specifications, they are used to indicate standards of quality and any such item specified by trade or brand name may only be replaced by a product which is approved in writing by Owner to be equal to that named or described and which meets the quality, performance and other requirements of the Contract Documents. Owner, as applicable, shall be the judge of whether products submitted are equal to those specified and Owner's decision shall be final and conclusive. Should Contractor desire to substitute another item of material or equipment for one specified, Contractor shall make such request for substitution in writing to Engineer and Owner, stating any credit or extra involved and shall provide all required supporting data and samples to justify such request. Any such substitution shall not be made 5 without express written authorization by Owner, based upon its determination that the item proposed is of equal or superior quality to the one specified. 4.10 Contractor warrants to Owner that: (i) materials and equipment furnished under the Contract Documents shall be of first class quality and new unless otherwise required or permitted by the Contract Documents; (ii) the Work shall be free from defects and deficiencies; (iii) the Work shall conform to the requirements of the Contract Documents, applicable laws and applicable permits; and (iv) the Work shall be performed in a good workmanlike manner. All guarantees or warranties of equipment or materials fumished to Contractor or any Subcontractor(s) by any manufacturer or supplier shall be for the benefit of Owner. Contractor shall and hereby does covenant, warrant and agree that it shall repair or replace any and all of the Work, together with other Work which may be displaced in so doing, that does not conform with the requirements of this Section 4.10, without any cost to Owner for a period of twenty -four (24) months following the date of Substantial Completion of the Work. This obligation shall survive both final payment for the Work or designated portion thereof and termination of this Agreement. 4.11 Prompt notice of all defects shall be given to Contractor, If, within twenty -four (24) months after the date of Substantial 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 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 direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. 4.12 Contractor shall pay and hold Owner harmless from all taxes arising out of the Contract Documents and the Work performed by Contractor by its employees. Contractor shall ensure proper handling of all taxes payable by Subcontractors. 4.13 Contractor shall comply with and give all notices required by applicable laws. Contractor shall coordinate the Work with public and private utilities and other authorities and Contractor shall be held responsible for any lack of coordination thereof. 4.14 If Contractor performs Work knowing it to be contrary to any applicable laws, Contractor shall assume sole responsibility for such Work and shall bear the costs attributable to correction of such Work, and in no event shall such costs or correction result in any increase in the Contract Time or the Base Bid Price. 4.15 Contractor shall employ a competent Project Manager, Project Superintendent and necessary assistants who shall be in attendance at the Site during the performance of the Work. Contractor shall not replace said key personnel without prior approval of Owner. The Project Superintendent and Project Manager shall represent Contractor, and communications given to the Project Superintendent and (or) Project Manager shall be as binding as if given directly to Contractor. 4.16 As a supplement to the Project Schedule (and not as a replacement or modification thereof), Contractor shall provide Owner with: (i) an updated rolling four (4) week look -ahead schedule prepared on a weekly basis; and (ii) an updated overall Project Schedule 6 prepared on a monthly basis. However, no change in the Contract Time shall be effective unless and until a Change Order is properly executed. 4.17 Contractor shall make available at the Site for Owner, and any Consultants, one (1) record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one (1) record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. The foregoing items shall be delivered to Owner upon Completion of the Work. The final record drawings shall be submitted on reproducible hardcopies and in digital format. 4.18 Contractor shall confine operations at the Site to the area(s) permitted by Applicable Laws, Applicable Pemvts and the Contract Documents and shall not unreasonably encumber the Site with materials or equipment. Contractor shall not interrupt utilities or access to neighboring buildings, properties and (or) recreation areas, without prior written approval from Owner. No animals, children, loud music, boisterous/unsafe behavior or other nuisances shall be permitted at the Site at any time. 4.19 Indemnification. The Contractor shall, to the fullest extent permitted by law, indemnify and hold harmless Owner and any of its officials, boards, officers, agents and employees against any losses, claims, damages or liabilities for which Owner or any of its officials, boards, officers, agents, or employees may become subject to, insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, the Work, or are based upon any performance or nonperformance by Contractor or any subcontractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder; and Contractor shall reimburse Owner for any and all legal and other expenses including attorney fees incurred by Owner in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against Owner to the extent that Owner is solely liable to such third party for such claim. To the extent applicable, nothing shall be interpreted as a waiver of sovereign immunity. 4.20 Contractor shall furnish performance bond and a separate labor and material payment bond on forms acceptable to Owner, each in an amount at least equal to one -half of the Base Bid Price as security for the faithful performance and payment of all Contractor's obligations under the Contract Documents. In the event of any change order resulting in the performance of additional work in connection with the Project, the amounts of such bonds shall be increased by an amount equal to the cost of such additional work or materials or fixtures to be incorporated in the Project. Copies of the bonds shall be provided to Owner, and shall be made payable to Owner. 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 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 rights 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) above, Contractor shall within five days thereafter 7 substitute another bond and surety. Any subcontractor bonds required by the Contractor shall not be included in the cost of the work. 4.21 Contractor shall be solely responsible for the protection of the Work and material. Contractor shall have no claim against Owner because of any damage or loss to the Work (except that caused by negligence of Owner or those for whom Owner 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 its supervision or control, Contractor shall make its claim directly to 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 damaged Work. 5. CONTRACT ADMINISTRATION 5.1 The term "Consultant" refers to those persons hired by Owner and practicing in their specific field and although plural, are referred to throughout the Contract Documents from time to time as if singular in number. 5.2 Owner's instructions to Contractor shall be provided to Contractor in writing either directly or through a Consultant, if any. Consultant shall have authority to act on behalf of Owner only to the extent specifically provided in the Contract Documents. Owner shall visit the Site at such intervals as directed by Owner to determine in general if the Work is proceeding in accordance with the Contract Documents. Owner shall have authority to reject all or any portion of the Work which does not conform to the Contract Documents. 5.2.1 A "Claim" is a demand or assertion by one of the parties seeking, as a matter of right, an adjustment or interpretation of the Contract Document terms, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. 5.2.2 Pending final resolution of a Claim, Contractor shall proceed diligently with performance of the Contract Documents and Owner shall continue to make undisputed payments in accordance with the Contract Documents. 5.2.3 If Contractor wishes to make a Claim for an increase in the Base Bid Price (as the same relates to quantity, but not including Unit Prices, and subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 of the Agreement), written notice to Owner as provided herein shall be absolutely given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property, in which case Contractor shall act, at Contractor's discretion, to prevent the threatened damage, injury or loss. 5.2.4 If Contractor believes additional cost is involved for reasons allowed under the Contract Documents, then a Claim shall be filed in accordance with the Contract Documents. All Claims for increases in the Base Bid Price shall be made in writing to Owner as soon as reasonably practicable but in all events within seven (7) days of Contractor's knowledge of the circumstances giving rise to such Claim. In making a Claim for an increase in the Base Bid Price, Contractor shall provide Owner with written documentation conceming the Claim, including but not limited to the specific reasons for the Claim and the amount of the Claim. Any such Claim for increase in the Base Bid Price may result in an adjustment in the quantities, as provided in Sections 5.4, 5.5 and 5.6 of the Agreement, but under no circumstances shall there be an adjustment to the individual Unit Prices. In the event that Contractor fails to timely submit a Claim for an increase in the Base Bid 8 Price or Contract Time, or if additional Work is performed prior to the approval of such a Claim, no equitable adjustment shall be made to the Base Bid Price or Contract Time as a result of such Work. 5.3 Claims for Additional Time. 5.3.1 Except as expressly provided in the Contract Documents, Contractor shall not be entitled to any extension of the Contract Time. If Owner finds that Contractor is entitled to any extension of the Contract Time, Owner's determination as to the total number of days extension shall be based upon the currently approved Project Schedule and on all data relevant to such extension. Such data shall be included in an amendment to the , Project Schedule based upon a Change Order executed in accordance with the Contract Documents. Actual delays in activities which, according to the Project Schedule, do not affect the critical path shall not be the basis for a Change Order with respect thereto. 5.3.2 All claims for extensions of the Contract Time shall be made in writing to Owner as soon as reasonably practicable but in all events within five (5) days of Contractor's knowledge of the first instance of delay, and the circumstances and activities leading to such claim shall be indicated or referenced on Contractor's daily report for the day(s) affected. However, it is specifically acknowledged that no change in the Project Schedule shall be effective unless and until a Change Order is properly executed in accordance with the Contract Documents. In making a claim for an extension of time as a result of a delay, Contractor shall provide Owner with the following specific information: Nature of the delay; Date (or anticipated date) of commencement of delay; Activities on the Project Schedule affected by the delay, and(or) new activities delay, and their relationship with existing activities; Identification of person(s) or organization(s) or event(s) responsible for the delay; Anticipated extent of delay; and Recommended action to avoid or minimize the delay. 5.4 Owner shall have the right to require, by Change Order, that completion of all or any portion of the Work be accelerated to an earlier time. In the case of such acceleration, Contractor shall require its forces and its Subcontractors to work such overtime hours and take such other measures as reasonably necessary to accomplish the acceleration and Owner shall reimburse Contractor for increases in its Costs directly attributable to such acceleration and the Base Bid Price shall be adjusted accordingly (subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 of the Construction Agreement). Contractor shall keep accurate records of such overtime hours and other premium or acceleration costs and expenses resulting from such acceleration. This Section 5.4 shall have no application to overtime or accelerated Work which Contractor is required to perform because of its failure to meet the Project Schedule or, without limitation, because of any other fault of Contractor. 5.5 Owner may require, by Change Order, that completion of all or any portion of the Work be "re- sequenced" at Owner's direction. In the case of such re- sequencing, Contractor shall require its forces and its Subcontractors to work such overtime hours and take such other measures as necessary to accomplish the re- sequencing and Owner shall reimburse Contractor for increases in its cost directly attributable to such re- sequencing and the Base Bid Price shall be adjusted accordingly (subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 of the Construction Agreement). Contractor shall keep accurate records of such overtime hours and other premium or acceleration costs and expenses resulting from such re- sequencing. This Section 5.5 shall have no application to overtime or accelerated work which Contractor is required to perform because of its failure to meet the Project Schedule or, without limitation, because of any other fault of Contractor. 9 5.6 All claims, disputes, controversies and other matters in question between Owner and Contractor shall, in the first instance, be subject to good faith negotiations between the parties. Either party may notify the other of a claim or dispute. Within fifteen (15) days after the delivery of such notification, or such longer period as the parties may mutually agree, the parties shall meet in a good faith to resolve any claims or disputes. In the event the parties cannot reach an agreement then any and all remaining claims, disputes or controversies related to the Contract Documents, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. The parties further acknowledge and agree that Owner shall have the right, but not the obligation, to join any Consultant and (or) Subcontractor in any such meeting and (or) litigation. 6. SUBCONTRACTORS 6.1 The Contract Documents include the following definitions: 6.1.1 "Subcontractor" is a person or entity who has a direct contract with Contractor to perform a portion of the Work at the Site. 6.1.2 "Sub- subcontractor" is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the Site. The term "Subcontractor at any tier" is used throughout the Contract Documents to refer to Subcontractors as well as Sub - subcontractors. 6.2 Contractor shall promptly fumish in writing to Owner the names of persons or entities proposed for each principal portion of the Work Owner shall have the right to review and comment upon each proposed Subcontractor, and Contractor shall then determine which Subcontractor(s) shall be engaged. Contractor shall not contract with a proposed Subcontractor to whom Owner has made reasonable and timely objection. Contractor shall not be required to contract with anyone to whom Contractor has made a timely and reasonable objection. Contractor shall deliver to Owner a copy of any proposed Subcontractor's bid(s). All Subcontracts shall conform to the requirements of the Contract Documents. Contractor shall deliver to Owner copies of all Subcontracts following their execution. 6.3 Contractor shall require each Subcontractor to be bound to Contractor by the terms of the Contract Documents. 6.4 All Work performed for Contractor by a Subcontractor shall be pursuant to an appropriate written agreement between Contractor and such Subcontractor (a "Subcontract ") (and where appropriate between Subcontractors and Sub - subcontractors), which shall contain provisions that 6.4.1 Provide Owner is an express third party beneficiary of the Subcontract; 6.4.2 Require the Work be performed in accordance with the requirements of the Contract Documents; 6.4.3 Include the Subcontractor's acknowledgment that Contractor has assigned its interest in the Subcontract to Owner (and(or) Owner's designee, including any substitute general contractor selected by Owner), which assignment shall become effective upon Contractor's default under the Contract Documents and Subcontractor's receipt of notification from Owner to Subcontractor that (i) Contractor is in default under the Contract Documents or Owner has terminated the Contract Documents; and (ii) the assignment is effective; and 6.4.4 Require that all claims for additional costs, extensions of time, damages for delays or otherwise with respect to subcontracted portions of the Work shall be submitted to Contractor (via any Subcontractor or Sub - subcontractor where appropriate) in sufficient time so that Contractor 10 • may comply in the manner provided in the Contract Documents for like claims by Contractor upon Owner. 6.5 Each Subcontract is hereby assigned by Contractor to Owner (and (or) Owner's designee, including any substitute general contractor selected by Owner); provided that such assignment is effective only after termination of the Contract Documents by Owner pursuant hereto and only for those Subcontracts which Owner (and (or) Owner's designee, including any substitute general contractor selected by Owner) accepts by notifying the Subcontractor and Contractor in writing. 7. (Intentionally Delted] 8. CHANGES IN THE WORK 8.1 Changes in the Work may be accomplished after execution of the Contract Documents, and without invalidating the Contract Documents, by Change Order, subject to the limitations stated in the Contract Documents. Any such Change may result in an extension of the Contract Time or a change in the quantities set forth in Section 5.4 of the Construction Agreement (without any change in the Unit Prices). 8.2 [Intentionally Deleted] 9. TIME 9.1 The Contract Documents include the following defined terms: 9.1.1 "Contract Time" is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. 9.1.2 "Date of Commencement of the Work" is the date as established in Section 4.1 of the Agreement. 9.1.3 "Date of Substantial Completion" is the date certified by Owner in accordance with Section 10.6. 9.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. 9.2 Time limits stated in the Contract Documents are of the essence in the Contract Documents. By executing the Agreement, Contractor confirms that the Contract Time is a reasonable period for performing the Work. 9.3 Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. 9.4 If not by reason of the acts or omissions of Contractor or Subcontractors, Contractor is delayed in the performance of the Work by acts of God, earthquakes, flood, lightning, tomado, fire, abnormal weather conditions, acts of a public enemy, acts of terrorism, civil or military conflicts or commotion, shortages of materials (but only to the extent caused by one of the foregoing factors), or unusual delays of common carriers (but only to the extent caused by one of the foregoing factors) (collectively, "Force Majeure Events "), Owner and Contractor shall meet and confer regarding the adjustment, if any, to be made to the Contract Time and in so doing shall take into account the proportionate responsibility for the delay, if any, of Contractor and anyone employed or engaged by Contractor directly or indirectly. Except as expressly provided in this Section 9.4 or as otherwise specifically provided in the Contract Documents, in no event shall Contractor be entitled to an adjustment to the Contract Time. Contractor expressly assumes the risk of all Force Majeure Events to the extent not expressly provided in this Section 9.4, whether or not 11 within the reasonable control of Contractor and(or) caused directly or indirectly, by any Subcontractor, supplier, vendor and(or) material man default/nonperformance. In the event of any disagreement between Owner and Contractor as to the amount of the adjustment to be made to the Contract Time, the amount of the adjustment not in dispute shall be processed as a Change Order and the amount in dispute shall be processed as a Claim under the provisions of Section 5.3 above, and Section 7 of the Agreement. No extension of the Contract Time shall be made for delays caused by Force Majeure Events unless notice in writing of claim is given to Owner not later than seven (7) working days after the commencement of the delay or after Contractor becomes aware of the delay or the cause of the delay (time being of the essence with respect thereto). This provision shall control, notwithstanding any other time frames provided in Section 5.3 above or in Section 7 of the Agreement. The burden of proof that an event of delay has occurred which should extend the Contract Time as provided for herein shall be bome by the party claiming such to be the case; provided, however, under no circumstances shall there be an adjustment to the Base Bid Price or the individual Unit Prices. Claims relating to time shall be made in accordance with applicable provisions of Section 5.3 as modified by this Section 9. 10. PAYMENTS AND COMPLETION 10.1 Such Applications for Payment may not include requests for payment for portions of the Work for which Contractor does not intend to pay to a Subcontractor or material supplier. 10.2 Contractor agrees that all funds received by Contractor are to be held in trust for the party(ies) entitled to receive such funds. 10.3 Progress Payments: 10.3.1 Not more often than once 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 based upon the Base Bid Price/Unit Prices. 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 staling 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. 10.3.2 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. 10.3.3 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 "). 10.3.4 Contractor shall promptly pay each Subcontractor, upon receipt of payment from Owner, out of the amount paid to Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained 12 from payments to Contractor on account of such Subcontractor's portion of the Work. Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in a similar manner. Should Contractor neglect or refuse to cause to be paid promptly any bill or charge legitimately incurred by it, Owner shall have the right, but not the obligation, to pay the bill directly upon not less than seventy -two (72) hours prior written notice to Contractor, and Contractor shall immediately reimburse Owner for same or Owner shall, at its election, offset such amounts as provided in the Contract Documents. If Contractor does not immediately reimburse Owner, Owner may offset the amount of the bill against amounts owed by Owner to Contractor hereunder. Owner shall further have the right to pay sums due to any Subcontractor or vendor by joint check payable to Contractor and each such Subcontractor and Sub- subcontractor or vendor. • 10.3.5 Owner, shall not have an obligation to pay or to cause the payment of money to a Subcontractor except as may otherwise be required by law. 10.3.6 Payment to material suppliers shall be treated in the same manner as provided in Section 10.3.4. 10.3.7 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by Owner shall not constitute acceptance of any Work not in accordance with the Contract Documents. 10.3.8 Colorado Statutes do not provide for any right of lien against any public buildings or work In lieu thereof, Title 38 -26 -107 et.seq. C.RS., as amended provides adequate relief for any claimant having fumished 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 Contractor in the amount of such claims. 10.4 Final Payment 10.4.1 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 defective. Contractor shall immediately take such measures as are necessary to remedy such deficiencies. 10.4.2 After Contractor has completed all such corrections to the satisfaction of Owner, 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 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 fumish 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 Owner or its 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 fumish a bond or other collateral satisfactory to Owner to indemnify Owner against any lien. 13 10.4.3 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.RS. §38 -26 -107. 10.4.4 The Owner shall not authorize final payment until all items on the punch list have been completed to Owner's satisfaction, Owner has received a Certificate of Occupancy from the local jurisdiction (or its equivalent), 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. 10.4.5 Before the County may advertise, Contractor shall: A. Deliver to the Eagle County Project Manager for review: a. All guaranties and warranties; b. A letter confirming that sales taxes from which the County is exempt have not been paid; c. Three (3) complete bound sets of required operations and maintenance manuals and instructions plus one (1) electronic copy placed on an archival quality compact disc; d. Two (2) sets of as-built drawings plus one (1) electronic copy placed on an archival quality compact disc; e. To the extent not already furnished, one copy of all corrected Shop Drawings; f Satisfactory evidence that all payroll, material bills, and other indebtedness connected with the Work have been paid or otherwise satisfied; g. 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; h. Consent of the surety to final payment; and i. Any other documents required to be furnished by the Contract Documents. 14 10.4.6 Upon completion of the foregoing, Contractor's Settlement shall be advertised in accordance with Colorado law. On the date of final settlement thus advertised, and after Contractor has submitted a written notice that no claims have been filed, final payment and settlement shall be made in full. 10.4.7 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 Contractor, Owner shall withhold from 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. 10.4.8 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 County except those arising front 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 wan required by the Contract Documents. 10.4.9 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 Contractor except those previously made in writing and separately identified by Contractor as unsettled in the final Project Application for Payment. 10.4.10 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. 10.4.11 No payment, including final payment, shall be construed as an acceptance of defective or incomplete work, and Contractor shall remain responsible for its performance conforming with the requirements of the Contract Documents. 10.4.12 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 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. 10.5 Failure of Payment. 10.5.1 Subject to the provisions set forth in Section 14.6 below, if Owner, through no fault of Contractor, does not pay Contractor the current amount of a Certificate for Payment within seven (7) days after the date established in the Contract Documents, then Contractor may, upon thirty (30) additional days written notice to Owner, stop the Work until payment of the amount owing has 15 been received. If Contractor terminates the Contract Documents in accordance with Section 14.6 below, Contractor's exclusive remedies shall be governed by Subsection 14.3 below. 10.5.2 If Owner is entitled to reimbursement or payment from Contractor pursuant to the Contract Documents, such payments shall be made promptly (without setoff) upon demand by Owner. Notwithstanding anything contained in the Contract Documents to the contrary, if Contractor fails to promptly make any payment due Owner, or Owner incurs any costs and(or) expenses to cure any default of Contractor or to correct defective or deficient Work, Owner shall have an absolute right to: (i) deduct an amount equal to that which Owner is entitled from any payment then or thereafter due to Contractor from Owner; or (ii) issue a written notice to Contractor reducing the Base Bid Price by an amount equal to that which Owner is entitled; or (iii) pursue any other rights and remedies available to Owner. 10.6 Substantial Completion. Substantial Completion is the stage in the progress of the Work when the Work is sufficiently complete in accordance with the Contract Documents so that Owner can occupy or utilize the Work for its intended use and a temporary certificate of occupancy (or its functional equivalent) has been issued by the appropriate govemmental agency. 10.6.1 When Contractor considers that the Work is Substantially Complete, Contractor shall prepare and submit to Owner a Notice of Substantial Completion. Owner shall then make an inspection to determine whether Substantial Completion of the Work has occurred. If Owner's inspection discloses any item which is not sufficiently complete in accordance with the Contract Documents so that Owner can occupy or utilize the Work or designated portion thereof for its intended use, Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item. In such case, Contractor shall then submit a request for another inspection by Owner to determine Substantial Completion. If Contractor prematurely requests inspection, Contractor shall be responsible for Owner's, and other consultants' inspection fees. Further, Owner and Contractor shall then together prepare a comprehensive list of all punch work and other items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of Contractor to complete all Work in accordance with the Contract Documents. 10.6.2 When the Work or designated portion thereof is Substantially Complete, Owner shall prepare a Certificate of Substantial Completion which shall: (i) establish the date of Substantial Completion for purposes of the Contract Documents (however, not necessarily for insurance purposes); (ii) establish, as applicable, responsibilities of Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance; and (iii) fix the time within which Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or a designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 10.6.3 The Certificate of Substantial Completion shall be submitted to Owner and Contractor for their written acceptance of responsibilities assigned to them in such certificate. 10.7 Use. 10.7.1 Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with Contractor including, but not limited to, access and entry rights. Such partial occupancy or use may commence whether or not the portion is Substantially Complete, provided Owner and Contractor have 16 accepted in writing the responsibilities assigned to each of them for payments, retainage, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing conceming the period for correction of the Work and commencement of warranties required by the Contract Documents. 10.7.2 Immediately prior to such partial occupancy or use, Owner and Contractor shall jointly inspect the area(s) to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 10.7.3 Unless otherwise agreed, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents or begin any warranty periods. 11. PROTECTION OF PERSONS AND PROPERTY 11.1 Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract Documents. 11.2 Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: 11.2.1 Employees on the Site and other persons who may be affected thereby; 11.2.2 The Work and the materials and equipment to be incorporated therein, whether in storage on or off Site, under the care, custody or control of Contractor, its Subcontractors or Sub - subcontractors; and 11.2.3 Other property at the Site or adjacent thereto. 11.3 Contractor shall give notices and comply with all Applicable Laws regarding the safety of persons and (or) property and their protection from damage, injury or loss. 11.4 Contractor shall erect and maintain, as required by existing conditions and performance of the Contract Documents, reasonable safeguards for safety and protection, including posting danger signs and other wamings against hazards, promulgating safety regulations, and notifying owners and users of adjacent sites and utilities. 11.5 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, Contractor shall exercise utmost care and carry on such activities under the supervision of properly qualified personnel. 11.6 Contractor shall promptly remedy any damage and (or) loss to property caused in whole or in part by Contractor, a Subcontractor, a Sub - subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which Contractor is responsible. The foregoing obligations of Contractor are in addition to Contractor's obligations under the Agreement. 11.7 Contractor shall designate a responsible member of Contractor's organization at the Site, whose duty shall be the prevention of accidents. This person shall be Contractor's Project Superintendent unless otherwise designated by Contractor in writing to Owner.. 11.8 It is the responsibility of Contractor to maintain a safe workplace. Execution of the Contract Documents signifies Contractor's acknowledgment that it must provide all safety equipment, systems and procedures to perform the Work. Contractor and its Subcontractors and Sub - subcontractors shall conduct the Work in a way that all Colorado -OSHA and other applicable safety guidelines are met. 17 11.9 The cost of any safety violation(s) shall be the sole responsibility of Contractor. 11.10 Contractor shall not cause or permit any Hazardous Materials to be brought upon, kept or used on or about the Site except to the extent such Hazardous Materials: (i) are necessary for the prosecution of the Work, and are kept and utilized in full compliance with all Applicable Laws; (ii) are required pursuant to the Contract Documents; and (iii) have been approved in writing by Owner. Any Hazardous Materials allowed to be used on the Site shall be used, stored and disposed of in compliance with all Applicable Laws relating to such Hazardous Materials. Any unused or surplus Hazardous Materials allowed to be used on the Site shall be used, stored and disposed of in compliance with all Applicable Laws relating to such Hazardous Materials. Any unused or surplus Hazardous Materials, as well as any other Hazardous Materials which have been placed, released or discharged on the Site by Contractor or any of its Subcontractors, employees, agents, suppliers or Sub - subcontractors, shall be removed from the Site at the earlier of (x) completion of the Work requiring the use of such Hazardous Materials; (xi) the completion of the Work as a whole; or (xii) within twenty -four (24) hours following Owner's demand for such removal. Such removal shall be undertaken by Contractor at its sole cost and expense, and shall be performed in accordance with all Applicable Laws. Any damage to the Work, the Site or any adjacent property resulting from the improper use, or any discharge or release, of Hazardous Materials shall be ieniedied by Contractor at its sole cost and expense, and in compliance with all Applicable Laws, and shall not be included in the Cost of the Work. Contractor shall immediately notify Owner of any release or discharge of any Hazardous Materials on the Site. Contractor shall provide Owner with copies of all warning labels on products which Contractor or any of its Subcontractors or Sub - subcontractors shall be using in connection with the Work, and Contractor shall be responsible for making any and all disclosures required under applicable "Community Right -to- Know" laws. Contractor shall not clean or service any tools, equipment, vehicles, materials or other items in such a manner as to cause a violation of any Applicable Laws relating to Hazardous Materials. All residue and waste materials resulting from any such cleaning or servicing shall be collected and removed from the Site in accordance with all Applicable Laws. Contractor shall immediately notify Owner of any citations, orders or warnings issued to or received by Contractor, or of which Contractor otherwise becomes aware, which relate to any Hazardous Materials on the Site. As used herein, the term `Hazardous Materials" means any hazardous or toxic materials, pollutants, contaminants or wastes and any other chemical, material or substance, the handling, storage, release, transportation, or disposal of which is or becomes prohibited, limited or regulated by any federal, state, county, regional or local authority or which, even if not so regulated, is or becomes known to pose a hazard to health and (or) safety. 12. UNCOVERING AND CORRECTION OF WORK 12.1 If the Work or portion of the Work is covered contrary to a request by Owner or contrary to requirements specifically expressed in the Contract Documents, such Work must, if required in writing by Owner be uncovered for Owner's examination and be replaced at Contractor's expense without change in the Base Bid Price or Contract Time. 12.2 If the Work or a portion of the Work has been covered which Owner has not specifically requested to examine prior to its being covered, Owner may request to see such Work and it shall be uncovered by Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at Owner's expense. If such Work is not in accordance with the Contract Documents in any respect, correction shall be at Contractor's expense. 12.3 Correction of Work. 12.3.1 Before or After Substantial Completion Contractor shall promptly correct Work rejected by Owner or failing to conform to the requirements of the Contract Documents, whether 18 discovered before or after Substantial Completion and whether or not fabricated, installed or completed. All costs of correcting such rejected Work, including additional testing and inspections and compensation Consultant's services and expenses made necessary thereby, shall be at Contractor's expense. 12.3.2 After Substantial Completion. In addition to Contractor's obligations under Section 12.3.1, and without limiting any other rights or remedies of Owner, if; within twenty -four (24) months after the date of Substantial Completion of the Work (or a designated portion thereof) or after the date for commencement of warranties established under Section 10.6.3, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, or not in accordance with the standards set forth in Section 4.10, Contractor shall correct such nonconforming Work promptly after receipt of written notice from Owner to do so and without further payment or reimbursement. Owner shall give such notice after discovery of such condition. If Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from Owner, Owner may correct it in accordance with Section 3.3. 12.3.3 The twenty -four (24) month period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of such Work. 12.3.4 Contractor shall remove from the Site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by Contractor nor accepted by Owner. 12.3.5 Contractor shall bear the cost of correcting destroyed or damaged construction of Owner or separate contractors, whether completed or partially completed, caused by Contractor's correction or removal of Work required due to Contractor's failure to fulfill its obligations under the Contract Documents. 12.3.6 Nothing contained in this Section 12.3 shall be construed to establish a period of limitation with respect to other obligations which Contractor might have under the Contract Documents. Establishment of the twenty -four (24) month period for correction of Work relates to the specific obligation of Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish Contractor's liability with respect to Contractor's obligations other than specifically to correct the Work. 12.3.7 Nothing contained in the Contract Documents shall in any way limit the right of Owner to assert claims for damages resulting from patent or latent defects in the Work for the period of limitations prescribed by Colorado law, and the foregoing shall be in addition to any other rights and remedies Owner may have hereunder or at law or in equity. 12.3.8 If Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, Owner may do so instead of requiring its removal and correction, in which case the Base Bid Price shall be equitably reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 13. MISCELLANEOUS PROVISIONS 19 13.1 The Contract Documents shall be govemed by the laws of the State of Colorado and venue shall be in the Eagle County District Court. 13.2 Successors and Assigns. Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. 13.3 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the fimi or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. 13.4 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available at law or in equity. 13.5 No action or failure to act by Owner or Contractor shall constitute a waiver of a right or duty afforded them under the Contract Documents, nor shall such action or failure to act constitute approval of or acquiescence to a breach thereunder, except as may be specifically agreed in writing. 13.6 NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THE CONTRACT DOCUMENTS, PROVIDED THAT OWNER CONTINUES TO MAKE PAYMENTS OF AMOUNTS NOT IN DISPUTE IN ACCORDANCE WITH THE PROVISIONS OF THE CONTRACT DOCUMENTS, DURING ALL DISPUTES, ACTIONS OR CLAIMS AND OTHER MATTERS IN QUESTION ARISING OUT OF, OR RELATING TO, THE CONTRACT DOCUMENTS OR THE BREACH THEREOF, CONTRACTOR SHALL CARRY ON THE WORK AND MAINTAIN THE PROJECT SCHEDULE, UNLESS OTHERWISE AGREED IN WRITING BY CONTRACTOR AND OWNER 13.7 The selection of bidders shall be in accordance with the laws of Colorado. In theevent of 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 Owner. 13.8 Contractor acknowledges that the Work is a public work financed in whole or in part by funds of the state of Colorado and/or County, 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." 13.9 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 contracts or subcontracts during the performance of this Contract: 20 A. 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, sexual orientation, or age. Contractor will take affirmative action to 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. 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. Contractor will, in all solicitations or advertisements for employees placed by or on behalf of 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. 14. TERMINATION OR SUSPENSION OF THE CONTRACT 14.1 If Contractor shall default in the performance of its obligations under the Contract Documents then Owner shall have the right, if Contractor shall not cure any such default after seven (7) days written notice thereof, to: (i) terminate in whole or in part the Contract Documents and the Work thereunder and Contractor shall not be entitled to any further compensation whatsoever for any Work undertaken or otherwise, except as specifically provided in the following paragraph; (ii) take possession of and use all or any part of Contractor's materials and supplies used by Contractor in the performance of the Work and to use such property in the completion of the Work; and (fi) complete all or any portion of the Work in any manner it deems desirable, including engaging the services of other parties therefor. In addition, Owner (and(or) Owner's designee, including any substitute general contractor selected by Owner) shall have the right, in Owner's sole discretion, to assume all necessary or desirable contracts and prosecute the Work through existing Subcontractors, and Contractor agrees to take all reasonable actions in furtherance of the foregoing, including but not limited to ensuring that all Subcontractors acknowledge Owner (and(or) Owner's designee, including any substitute general contractor selected by Owner) as a permitted assignee and third -party beneficiary to such Subcontracts entitled to enforce the provisions of such Subcontracts to Owner's benefit. Any such act by Owner shall not be deemed a waiver of any other right or remedy of Owner. If after exercising any such remedy the cost to Owner of the performance of the balance of the Work is in excess of that part of the Base Bid Price (including amounts retained from Contractor) which has not previously been paid to Contractor hereunder, Contractor shall be liable for and shall reimburse Owner for such excess within ten (10) days of receipt of Owner's demand for reimbursement, and any other damages incurred by Owner due to Contractor's breach, including but not limited to any liquidated damages payable to Owner under the Contract Documents. In no event shall Contractor be entitled to receive any compensation should the cost to Owner of performing the balance of the Work be less than that part of the Base Bid Price which has not previously been paid to Contractor. In the case of any partial termination of the Work, Contractor shall continue to perform Work under those portions of the Contract Documents which have not been not terminated, for which the Base Bid Price shall be adjusted in accordance with the Unit Prices (subject to the provisions and conditions of Sections 5.4, 5.5 and 5.6 of the Construction Agreement), and Contractor shall be compensated after accounting for 21 such adjustments to the Base Bid Price. For the avoidance of doubt, Contractor's compensation shall be limited as set forth above to those portions of the Work which have been terminated. 14.2 If Contractor is or becomes subject to any Bankruptcy, Owner shall have the right to terminate the Contract Documents and pursue the rights set forth above in Section 14.1. 14.3 Owner reserves the right to terminate the Contract Documents in whole or in part for its convenience, without regard to fault or breach of Contractor, suppliers, vendors and(or) material men, upon not less than seven (7) days written notice to Contractor, effective immediately unless otherwise provided in said notice. In the event of such termination, and concurrently with the receipt by Owner of satisfactory lien releases from Contractor, its Subcontractors of every tier and suppliers of every tier, Owner shall pay as the sole amount due to Contractor in connection with the Project that portion of the Base Bid Price due for Work performed to the date of temmination, plus any reasonable restocking and(or) cancellation charges that could not be avoided and the cost of fabricating special materials that were ordered prior to Owner's termination notice, less any sums already received by Contractor. In no event shall Owner be responsible for Contractor's lost profits, overhead or consequential damages. 14.4 Upon a determination by a court that termination of Contractor or its successor in interest pursuant to Sections 14.1 was wrongful, Contractor's remedy for wrongful termination shall be limited to the recovery of the payments set forth in Subsection 14.3. 14.5 Upon termination of the Contract Documents for any reason, Contractor shall: 14.5.1 Forthwith withdraw its employees, workmen, machinery and equipment from the Project in an orderly manner, as directed by Owner; 14.5.2 Within twenty (20) days after such termination, Contractor shall furnish Owner with a complete accounting of the amounts incurred to the date of termination together with a final status report updating the progress of the Work up to the date of termination; 14.5.3 Within five (5) days after said termination, Contractor shall deliver to Owner all Shop Drawings, Project Data and Samples available, and all other of Contractor's engineering, procurement, accounting and construction documents and records relating to the Work performed under the Contract Documents; and 14.5.4 Within five (5) days after said termination, Contractor shall assign to Owner (and (or) Owner's designee, including any substitute general contractor selected by Owner) all of Contractor's interest in any Subcontracts and purchase orders that Owner so designates in writing. 14.6 Termination by Contractor. Contractor may terminate the Contract Documents if Owner, through no fault of Contractor, a Subcontractor, a Sub - subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, fails to make payments to Contractor (subject to the provisions of Sections 10.5, 13.2.6 and this Section 14.6) or is in material default of any of its obligations hereunder. Notwithstanding anything herein to the contrary, Contractor may not terminate the Contract Documents based upon a non- monetary default by Owner without (i) providing Owner with at least thirty (30) days advance written notice and an opportunity to cure, and (ii) if such default is susceptible of being cured within such thirty (30) day period, but Owner is diligently pursuing a cure, then Contractor shall not so terminate the Contract Documents so long as Owner diligently acts and, in any case, without an additional fifteen (15) days notice. Upon such termination, Contractor's remedy shall be limited to the recovery of payments pursuant to Subsection 14.3 22 14.7 Suspension by Owner for Convenience. 14.7.1 Owner may, without cause, order Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as Owner may determine. 14.7.2 The Base Bid Price and Contract Time shall be equitably adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section 14. (as the same relates to quantity, but not including Unit Prices,); provided however, no adjustment shall be made to the extent that: 1. Performance of the Work is, was or would have been so suspended, delayed or interrupted by another cause for which Contractor, a Subcontractor, a Sub - subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, is responsible; or 2. An equitable adjustment is made or denied under another provision of the Contract Documents. 23 EXHIBIT C ♦ J EAGLE COUNTY GOVERNMENT Beard Creek Road & Berry Creek Road Sidewalk Improvements Project Special and Standard Special Provisions Prepared By: Eagle County Engineering 5/19/2011 BEARD CREEK ROAD & BERRY CREEK ROAD SIDEWALK IMPROVMENTS SPECIAL PROVISIONS The Colorado Department of Transportation's 2011 Standard Specifications for Road and Bridge Construction shall control construction of this project. The following Special Provisions supplement or modify the Standard Specifications and take precedence over the Standard Specifications and Plans. PROJECT SPECIAL PROVISIONS TABLE OF CONTENTS TABLE OF CONTENTS 1 NOTICE TO BIDDERS 2 REVISION OF SECTION 101 — DEFINITIONS AND TERMS 3 REVISION OF SECTION 102 — BIDDING REQUIREMENTS AND CONDITIONS 4 REVISION OF SECTION 210 - RESET MAILBOX STRUCTURE (NEWSPAPER DISPENSER) (SPECIAL) 5 REVISION OF SECTION 212 — SEEDING, FERTILIZER, SOIL CONDITIONER, AND SODDING 6 REVISION OF SECTION 603 — CULVERTS AND SEWERS 7 REVISION OF SECTION 604 — MANHOLES, INLETS, AND METER VAULTS 8 REVISION OF SECTION 608 — CONCRETE CURB RAMP (TYPE 2A)(MODIFIED) 9 REVISION OF SECTION 630 — CONSTRUCTION ZONE TRAFFIC CONTROL 10 TRAFFIC CONTROL PLAN 11 UTILITIES 12 NOTICE TO BIDDERS It is recommended that bidders on this project review the work site and plan details. Prospective bidders shall contact the following authorized representative with any project specific questions. Ben Gerdes, Senior Project Engineer, Eagle County Engineering at 970 - 328 -3560 or electronically at Ben.Gerdes@eaglecounty.us. The above referenced individual is the only representative with authority to provide any information, clarification, or interpretation regarding the plans, specifications, and any other contract documents or requirements. Any information obtained from sources other than the authorized representative shall be considered invalid in the preparation of a proposal for this project. The schedule for this project has not been determined. It is anticipated that the project will be constructed between July and October 2011 but a start date has not been determined. REVISION OF SECTION 101— DEFINITIONS AND TERMS Technical Specifications related to construction materials and method for the Work embraced under this Contract shall consist of the "State Department of Highways, Division of Highways, State of Colorado, Standard Specifications for Road and Bridge Construction" dated 2010. Certain terms utilized in the Specifications referred to in the paragraph above shall be interpreted to have different meanings within the scope of this Contract. Section 101 of the Standard Specifications is hereby revised for the project as follows: Revise the following subsections with the corresponding definition: 101.28 Department. Eagle County Government, Eagle County, Colorado 101.29 Engineer. The Engineer as designated by Eagle County Government or designated representative. 101.51 Project Engineer. The Engineer as designated by Eagle County Government of the designated representative thereof who is in direct charge of the work and is responsible for the administration and satisfactory completion of the project under contract. 101.76. Eagle County Government acting through its authorized representative(s). REVISION OF SECTION 102 - BIDDING REQUIREMENTS AND CONDITIONS Section 102 of the CDOT Standard Specifications is hereby deleted from this project. REVISION OF SECTION 210 - RESET MAILBOX STRUCTURE (NEWSPAPER DISPENSER) (SPECIAL) Section 210 of the Standard Specifications is hereby revised for this project as follows: Subsection 210.06 shall include the following: Resetting newspaper dispensers located at the comer of Berry Creek Road and Latigo Circle. Subsection 210.12 shall include the following: The complete newspaper dispenser installation shall be considered one unit and shall be paid for as one unit. All work associated with resetting the newspaper dispensers will not be measured and paid for separately but shall be included in the work. Subsection 210.13 shall include the following: Pay Item Pay Unit Reset Mailbox Structure (Newspaper Dispenser)(Special) Each REVISION OF SECTION 212 - SEEDING, FERTILIZER, SOIL CONDITIONER, AND SODDING Section 212 of the Standard Specifications is hereby revised for this project as follows: Subsection 212.06 shall include the following: All areas to be vegetated with native seeding shall include the following mix at a rate of 1 PLS # per 1,000 s.f.: Variety % of Mix PLS# / AC Blue Grama Grass 38.0 17.1 Rocky Mountain Fescue 15.0 6.75 Indian Rice Grass 10.0 4.5 Alpine Bluegrass 5.0 2.25 Muttongrass 5.0 2.25 Sheep Fescue 15.0 6.75 Arizona Fescue 6.0 2.7 Sandbergs Bluegrass 6.0 2.7 Plus wildflower seed mix sown with the following mix at a rate of 1.1 oz per 1,000 s.f.: Variety % of Mix PLS# / AC Narrowleaf Penstemon 17.0 0.5 Scarlet Gilia 10.0 0.3 Sulphur Flower 6.5 0.2 Utah Bluebells 6.5 0.2 Golden Banner 10.0 0.3 Prairie Coneflower 23.5 0.7 Dotted Gayfeather 6.5 0.2 Woolly Milkvetch 6.5 0.2 Mountain Lupine 13.5 0.4 REVISION OF SECTION 603 - CULVERTS AND SEWERS Section 603 of the Standard Specifications is hereby revised for this project as follows: Subsection 603.12 shall include the following: Structure Excavation, Structure Backfill and Hot Mix Asphalt (Patching) required for placement of culverts and storm drains will not be measured and paid for separately but shall be included in the work. REVISION OF SECTION 604 - MANHOLES, INLETS, AND METER VAULTS Section 604 of the Standard Specifications is hereby revised for this project as follows: Subsection 604.07 shall include the following: ' Structure Excavation and Structure Backfill placement of manholes, inlets and meter vaults will not be measured and paid for separately but shall be included in the work. REVISION OF SECTION 608 — CONCRETE CURB RAMP (TYPE 2A)(MODIFIED) Section 608 of the Standard Specifications is hereby revised for this project as follows: Subsection 608.06 shall include the following: Pay Item Pay Unit Concrete Curb Ramp (Type 2A)(Modified) Square Yard Pay Item Concrete Curb Ramp (Type 2A) (Modified) shall be in accordance with the details included in the plans. REVISION OF SECTION 630 - CONSTRUCTION ZONE TRAFFIC CONTROL Section 630 of the Standard Specifications is hereby revised for this project as follows: Subsection 630.15 shall include the following: Construction Zone Traffic Control shall include furnishing, installing, moving, maintaining and removing all temporary devices, signs, markings and flagging in accordance with the Manual on Uniform Traffic Control Devices. All work associated with Construction Zone Traffic Control will not be measured and paid for separately but shall be included in the work. Subsection 630.16 shall include the following: Pay Item Pay Unit Construction Zone Traffic Control Lump Sum TRAFFIC CONTROL PLAN The Contractor shall provide a Transportation Management Plan (TMP) in accordance with the conditions of this Traffic Control Plan (TCP) and the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) and the Colorado Supplement thereto. The TMP shall provide details of how traffic will be maintained during all phases of construction. The TMP shall be submitted to the Engineer two weeks prior to beginning construction. The Contractor shall submit any changes to the TMP to the Engineer for approval during construction. Traffic Control Plan • Beard and Berry Creek Roads shall be maintained as two 10 -foot lanes • Short term daytime single -lane closures may be allowed with prior approval of the Engineer. Flaggers will be required for single -lane closures. • Advance signing for sidewalk closures is required. • Unless separated by temporary concrete barrier, an edge drop -off of no greater than 4- inches shall exist during non - working hours. • Work hours for the project shall be Monday — Friday, 8:OOAM — 7:OOPM; Saturday, 9:OOAM — 4:OOPM; Sunday, no work is allowed. UTILITIES The know utilities within the limits of the project are: UTILITY CONTACT / EMAIL PHONE CenturyUnk Barb Davis P.O. Box 570 Barb.Davis @CenturyLink.com 970- 328 -8288 Eagle, CO 81631 Holy Cross Electric P.O. Box 2150 Jeff Vroom jvroom@holycross.com 970 -947 -5425 Glenwood Springs, CO 81602 Eagle River Water &Sanitation District Roby Forsyth 846 Forest Road rforsyth @erwsd.com 970-477 -5435 Vail, CO 81657 Source Gas Ron Zatarain 0096 County Road 160 Ronald.Zatarain @sourcegas.com 970-928-0408 Glenwood Springs, CO 81601 Comcast Cable Tony Hildreth 201AABC Tony_Hildreth @comcast.cable.com 970-205-5432 Aspen, CO 81611 Berry Creek Metropolitan District Irrigation Kim Ahmad PO Box 1058 970- 926 -2611 Edwards, CO 81632 singletreemanager @me.com There are no known utility conflicts on the project. If a conflict with a utility is discovered during construction the Contractor shall notify the Engineer and Utility and shall work cooperatively to resolve the conflict. The Engineer shall be notified in writing of any extra work prior to commencement of the extra work. Eagle River Water & Sanitation: The contractor shall stake the location of the storm sewer inlet and pothole the utilities in the area of the inlet for review by the Eagle River Water & Sanitation District. The Eagle River Water & Sanitation District shall be notified 48 -hours in advance of this work. A minimum of 7 -feet of separation will be required between the back of the inlet and the water main. If less than 7 -feet of separation exists the water main will require insulation. � . . ......�. . (EXHIBIT D , / « . e r — m� . • . • - - -- - - - -- n \ • ' u 1- E et I- k — \ 2 \ \ \ \/ \ ) ) / ( w e 1::: <> F-- I v \ m $ J # k © \ ..: ¢ & D 4 a- E 2 2 a \ d } \ \ \ \ / \ \\ \ # ) u- R / ■ l e • ¥ . _ . f ( / i C * ( f $ ) ƒ / v v a « 12 _ 2 R, a . _ a N m N N o = } J- / I & k w 2 e 2 m E B a 2 0.1 / k @ - k ; E § 0 / E 7 § 2 E. e z } ) w D . k / 0 § / / / � 9 '' o . ¥ k ) v0 §- CV n # (0 (0 (0 01 7,- 2 R N EXHIBIT E J +, O N.. 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