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Home My WebLink AboutC13-373 FCI Constructors, Inc. Preconstruction and Construction Agreement PRECONSTRUCTION AND CONSTRUCTION AGREEMENT FOR EAGLE COUNTY REGIONAL AIRPORT SNOW REMOVAL EQUIPMENT FACILITY(SRE) THIS AGREEMENT is made this I I "�day of December, 2013, by and between Eagle County, Colorado, acting by and through its Board of County Commissioners ("County") and FCI Constructors, Inc., a company organized and existing by virtue of the laws of the State of Colorado (hereinafter referred to as "FCI"or"Contractor"). WHEREAS, the County intends to design and construct a Snow Removal Equipment Facility and related improvements including roads, parking, utilities and security fencing in Gypsum, Colorado ("the Project") WHEREAS, the Engineer /Architect for the Project is Jviation, Inc., 900 S. Broadway, Suite 350, Denver, Colorado 80209 ("Engineer"); and WHEREAS, the County seeks professional preconstruction services to facilitate and assist with the design of the Project and final construction services to complete the facility as designed; and WHEREAS, Contractor represents to the County that it is authorized to do business in the state of Colorado, and that it has, by virtue of its capabilities of budgeting, cost estimating, management, and personnel: the required technical and professional expertise to perform the scope of Work set forth in Section 2 hereunder. NOW THEREFORE, the County and Contractor, for the consideration hereinafter set forth, agree as follows: 1. Definitions 1.1. "Agreement" or "Contract" means this written agreement. 1.2. "Engineer" means "Engineer / Architect" for this project is Jviation, Inc., or such other professional architect, or group or association or professional corporation of such approved professional architects, engineers and consultants, who have contracted with the County to accomplish the architectural and engineering services necessary to the Work. 1.3. "Change Order" means a written order to the CM/GC signed by the Board of County Commissioners or the Project Manager and the CM/GC, issued after the execution of this Agreement, authorizing a change in the Work, the method or manner of performance, or an adjustment in the Guaranteed Maximum Price, Preconstruction Services, Construction Services, or the Contract Time. 1.4. "CM/GC"means Construction Manager/General Contractor and for this Agreement shall be interchangeable with Construction Manager-At-Risk"CM-A-R". 1.5. "Colorado Labor" means as provided in C.R.S. §8-17-101 et seq. as amended. 1.6. "Completion Date" means the first date when all of the following have occurred: the date that the Architect and Project Manager have certified that construction is completed in accordance with the Contract Documents, the local jurisdiction has issued a Certificate of Occupancy, and the date the County can fully occupy or utilize the Work for the purpose for which it is intended. 1.7. "Construction Documents" means the drawings and specifications that set forth in detail requirements for the construction of the Project. "100%Construction Documents"means 100% Design Documents with further detailed drawings and sections for constructability and written specifications for 100%ability to construct the project. 1.8. "Contingency"means the set percentage of the construction contract amount budgeted for unforeseen emergencies or design shortfalls identified after the construction project commences. 1.9. "Contract Documents" means this Agreement, Amendments to this Agreement, Conditions of the Contract(General, Supplementary and other Conditions), Drawings, Specifications,Notices to Proceed, Change Orders, Addenda to the RFP issued prior to execution of this Agreement, if any, and other documents as identified in Section 12 of this Agreement. 1.10. "Cost"means the total cost of labor, materials, provisions, supplies, fees, tests, expenses, bonds, equipment rentals, equipment purchases, insurance, supervision, engineering, clerical, and accounting services, the value of the use of equipment, and reasonable estimates of other administrative costs which may be reasonably apportioned to this Project to complete it in accordance with this Contract. 1.10.5 "Direct Cost of Work"means the Cost without the CM/GC fees included in Exhibit`B". 1.11. "Day" means calendar day unless specifically designated otherwise. 1.12. "Design Development" means the phase in which the Architect and other consultants prepare the design development documents, from the approved schematic design, for submission to the County for its approval. 1.13. "Design Documents"means the drawings and other documents that fix and describe the size and character of the entire project as to architectural, structural, mechanical, and electrical systems, materials and such other elements of the Project as may be appropriate. "100%Design Documents"means Design Documents that include grading, drainage, utility, irrigation, roadways, field lighting, building architectural, structural, mechanical, electrical, plumbing and other specifications necessary for a complete understanding of the scope of work for this Project." 1.14. "Drawings" means all drawings and specifications reviewed and accepted by the County which have been prepared by the Architect showing the Work to be done. 1.15. "Guaranteed Maximum Price" and "GMP" mean that maximum amount for which the Owner agrees to reimburse the total cost of the Work up to a prescribed ceiling amount. 2 1.16. "Notice to Proceed with Construction Services"means written notice from the Project Manager to the CM/GC with direction to commence the Construction Services, subject to the conditions of this Agreement. 1.17. The "Project" means the total design and construction of which the Work performed under the Contract Documents is a part, and may include construction by the County or by separate Contractors. 1.18. "Project Manager" means the individual appointed by the County to act as the County's representative. The Project is under the authority of the Eagle County Project Management Department, the Manager of which, or his designee, shall be County's Project Manager with Contractor with respect to the performance of the Work(hereinafter"Project Manager"). The Eagle County Project Manager shall be authorized to sign change orders increasing the scope of work and associated compensation within the budget constraints set for the Project. Change orders in excess of the budgeted amount must be signed and approved by the Board of County Commissioners. 1.19. "Subcontractor" means a person, firm, corporation, or other entity supplying labor and materials, or only labor, for the Work, under separate contact or agreement with the CM/GC or any other subcontractor. 1.20. "Supplier" means any manufacturer, fabricator, distributor, material-man or vendor. 1.21. "Value Engineering" means the technical review and analysis of systems and materials being considered in the design to produce the greatest value for the least cost,the object of which is to achieve the optimum value for each construction dollar spent and keep the fiscal constraints set forth throughout the Contract Documents. 1.22. "Work" means the preconstruction services and, if Contractor, FCI is selected as the CM/CG,the construction services and all other services required by the Contract Documents, including all other labor,materials, equipment and services provided or to be provided by the CM/GC to fulfill Contractor, FCI obligations. The Work may constitute the whole or a part of the Project. 2. Work: 2.1. Preconstruction Services: Contractor, FCI shall perform those preconstruction services that are normally and customarily provided during the planning and design phases of project of this nature, as more fully described in Eagle County's Request for Proposal and Qualifications, Preconstruction Services, for Eagle County Regional Airport Snow Removal Equipment Facility, Gypsum, Colorado, attached hereto as Exhibit "A," and incorporated herein by this reference (the "Preconstruction Services") and as identified in the CM/GC Fee Structure attached hereto as Exhibit "C" and incorporated herein by this reference. The Preconstruction Services are generally described as the follows: 3 A. Contractor will consult with, advise, assist and make recommendations to the County and Architect on all aspects of planning for the Project, including review and validation of plans, cost estimates and schedules. B. Contractor will designate a competent representative ("Preconstruction Representative"), and any necessary assistance, all satisfactory to the Eagle County Project Manager, to attend at least bi-weekly meetings, commencing immediately and continuing throughout the design phase of the project, as requested with the Architect and/or County to advise and discuss the preconstruction progress and respond to questions regarding the Project. As of the date of execution of this Agreement, Contractor has designated Brad Keller its Preconstruction Representative. The Preconstruction Representative shall not be changed except with the consent of the Eagle County Project Manager, which consent shall not be unreasonably withheld. C. Contractor will assist the Architect and County at any point in the pre- construction process to provide cost analysis comparisons of various materials, products, or design options. D. Contractor will provide Value Engineering services through technical review and analysis of alternative designs, systems, and materials being considered in the design to produce the greatest value for the least cost. Contractor will provide cost estimates of the alternatives and evaluate the alternatives on the basis of costs, time schedules, availability of labor and materials, construction feasibility,warranties and projected life expectancy. E. Contractor will make budget estimates based on the existing Design and other available information. Contractor will review and refine subsequent estimates with quantity take-off cost estimates in increasing detail as the development of the plans and specifications proceeds, and will advise the County and the Architect if it appears that the targets for the Project budget and/or completion will not be met. F. Contractor will solicit structural steel building manufacture pricing including a breakout for shop drawing and design assistance to the Engineer for Owner selection. Contractor will facilitate procurement by Owner. G. After the 100% Design Development is determined by the Owner and Engineer, Contractor will provide subcontractor prequalification and solicit subcontractor pricing with the 100% Design Documents. Contractor will then compile Final Pricing, to include hard bid subcontractor pricing, plus any other estimates and projections, for a comprehensive final cost estimate which shall be presented to County as a Guaranteed Maximum Price ("GMP"). Contractor will present the GMP, a detailed budget and construction schedule within 21 calendar days of the issue of the 100% Design Development Documents. The GMP, budget and construction schedule must be approved by the Eagle County Project Manager and the County before the Design and Construction Documents are 4 implemented and the construction services may commence upon the Eagle County Project Manager's issuance of a Notice to Proceed with Construction Services. H. Contractor will review plans and specifications with the Architect for accuracy and completeness and endeavor to eliminate areas of conflict and overlap in the work to be performed by the various subcontractors. I. Contractor will assist the design team in making recommendations of sequencing based on the project parameters for determining the most cost effective construction sequence. Contractor will provide a preliminary critical path schedule for the completion of the design phase, procurement of long lead items and construction phase to acquire a Certificate of Occupancy by November 22, 2014. J. Contractor will maintain an "Open Book" with the County and agrees to provide copies of all data, bids, estimates, takeoffs, and any other supporting documentation generated for pricing, products, materials, and schedule analysis. Some forms, formats and procedures may be construed as proprietary and copyrighted material. Although available for review by County, said materials such as estimating and project management information written, developed and implemented by Contractor shall not become public information. K. Contractor will assist County in obtaining Building Permits if requested. 2.2. Issuance of Notice to Proceed with Construction Services: A. If after completing Preconstruction Services, Contractor, FCI proposed GMP, detailed budget and construction schedule are accepted by County, then County shall provide Contractor with a Notice to Proceed with Construction Services as the Construction Manager/General Contractor ("CM/GC"). Any modifications to this Agreement shall be recorded in writing as an addendum. B. County, in its sole discretion, may decide not to proceed with the Project or with Contractor as the CM/GC, or County may decide not to issue a Notice to Proceed with Construction Services to Contractor for any reason or no reason at all. In the event County does not proceed with the Project or does not select Contractor as the CM/GC prior to commencement of Construction Services, Contractor will be paid for preconstruction services performed to that point, time and materials inclusive, in an amount not to exceed Seventeen Thousand Five Hundred Dollars ($17,500). This amount shall represent the total due to the Contractor for Work performed. C. Upon receipt of a Notice to Proceed with Construction Services, Contractor shall carry out and develop the overall plans produced by the Architect that have been pre- approved by the Eagle County Project Manager; establish procedures for coordination between the Architect and Contractor's subcontractors with respect to all aspects of the Construction Services and implement such procedures; and supervise and direct the work 5 of its subcontractors and coordinate the Work with the County's objectives of cost, time and quality, all in accordance with Section 2.3 herein. 2.3. Construction Services In the event County issues to Contractor, FCI a Notice to Proceed with Construction Services, the work and services to be provided shall include, but will not be limited to,the following (hereinafter,the"Construction Services"): A. Contractor shall furnish labor and Construction Services (1) which expeditiously, economically and properly complete the Project in the manner most consistent with the County's interests and objectives; and (2) in accordance with the highest standards currently practiced by persons and entities performing comparable labor and services on projects similar in size, complexity and cost in the State of Colorado. B. Supervision: Contractor shall supervise and direct the Construction Services, and shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and shall coordinate all portions of the Work under this Agreement. Contractor shall be responsible to County for the acts and omissions of Contractor's subcontractors, agents, employees and any other persons performing any of the Work or furnishing materials under a contract with Contractor. C. Meeting Attendance: Contractor shall meet regularly with the Architect and Eagle County Project Manager to discuss progress,present material and information and respond to questions regarding the Project. Contractor will be responsible for submitting to the Eagle County Project Manager, within five working days, the minutes of all meetings during the preconstruction and construction phases. Schedule and conduct weekly progress meetings at which subcontractors, Architect, the Eagle County Project Manager, and Contractor can discuss jointly such matters as progress, problems and scheduling. D. Schedule: Within fifteen (15) working days of issuance of the 100% Design Documents, Contractor shall prepare and submit a construction schedule for the Construction Services which shall provide for the expeditious practicable execution of the Construction Services. The schedule shall be consistent with the previously issued schedules, not exceed time limits current under this Agreement and shall be related to the entire project to the extent required by this Agreement. The schedule for the performance of the work shall be a Critical Path Method system. Contractor shall provide a detailed schedule for the operation of Contractor and subcontractors on the project, including realistic activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples and delivery of products requiring long lead-time procurement. E. Project Construction Budget: Contractor shall review the project budget and advise the Eagle County Project Manager if it appears that the Project Construction Budget will not be met and make recommendations for corrective action. Contractor shall develop and monitor an effective system of Project cost control; incorporated approved changes as they occur; develop cash flow reports and forecasts as required; identify any 6 variance between actual and budgeted costs within project budgets; advise Architect and Eagle County Project Manager whenever projected costs are expected to vary from the projected budget and/or the Guaranteed Maximum Price, and continually monitor the cost estimates to assure that the Work remains within the applicable budget of the Guaranteed Maximum Price. F. Coordination of Contract Documents: Contractor shall review the drawings and specifications and recommend alternative solutions whenever design details affect construction feasibility of schedules. G. Plan Review: Contractor shall review plans and specifications with the Architect and the Eagle County Project Manager so as to reduce areas of conflict and for coordination, accuracy and completeness of the plans and specifications at the issue of the construction documents. H. Labor: Contractor shall arrange and provide all labor necessary to accomplish and complete the Construction Services and analyze the types, quantity and availability of appropriate categories of labor required for various phases of the Project. I. Project Control: Contractor shall monitor the work of the subcontractors and coordinate the work with the activities and responsibilities of the Eagle County Project Manager and the Architect to complete the Project in accordance with the construction documents and Eagle County's objectives of cost,time and quality. J. Organization: Contractor shall establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Documents. K. Communication: Contractor shall establish procedures for coordination among the Eagle County Project Manager, the Architect, subcontractors and Contractor with respect to all aspects of the Project and implement such procedures. L. Monitoring: Contractor shall provide regular monitoring of the schedule as construction progresses. Identify potential variances with the scheduled completion dates. Review schedule for Work not started or incomplete and recommend to the Eagle County Project Manager and the Architect adjustments in the schedule to meet the Completion Date. Provide summary reports of each monitoring and document all changes in schedule. Determine the adequacy of the subcontractors' personnel and equipment and the availability of materials and supplies to meet the schedule. M. Cost Control: Contractor shall develop and monitor an effective system of project cost control, showing actual costs for activities in progress and estimates for uncompleted tasks. Incorporate approved changes as they occur. N. Permits and Fees: Contractor shall apply for a building permit for the Facility. County will pay the direct cost for the building permit. Contractor shall secure all other permits, including grading, mechanical and electrical permits applicable to subcontractor 7 work and any other special permits for permanent improvements not previously obtained by Eagle County. 0. Staffing: Contractor shall keep on the Project at all times, during its progress, Chadd Nelson, as project superintendent ("Superintendent"), and any necessary assistants, including a Project Manager, all satisfactory to the Eagle County Project Manager, to coordinate and provide general direction of the work and progress of the subcontractors on the Project. Contractor's Superintendent or Project Manager shall not be changed except with the consent of Eagle County's Project Manager, such consent to not be unreasonably withheld. Contractor's Superintendent and Project Manager shall represent Contractor and all direction given to it shall be as binding as if given to Contractor. P. Contractor shall provide full-time, qualified and efficient supervision of the Work, using their best skill and attention. Contractor shall carefully study and compare all drawings, specifications and other instructions and shall report to the Eagle County Project Manager, and immediately correct any error, inconsistency or omission which it may discover. Contractor shall inspect the work of the subcontractors at all stages and at final completion and shall guard Eagle County against defects and deficiencies in such work. Contractor shall be responsible to Eagle County for the acts and omissions of all its employees and agents and all other persons performing any of the work under a contract, for which Contractor has supervisory or inspection responsibility hereunder. Q. Safety: Contractor shall be responsible for the safety of persons and property and for compliance with all federal, state and local statutes roles, regulations and orders applicable to the conduct of the Construction Services. R. Shop Drawings and Samples: In collaboration with the Architect, Contractor shall establish and implement procedures for expediting the processing and approval of shop drawings and samples. S. Reports and Project Site Documents: Contractor shall record the daily progress of the Project in a daily log available to the County and the Eagle County Project Manager. Submit on a monthly basis written progress reports and summaries of meetings to the Eagle County Project Manager, including information on the subcontractors' work, the actual cost vs. budgeted cost, actual construction point vs. projected schedule point, reasons for any discrepancies, the percentage of completion and the corrective actions to obtain compliance with time and cost schedules. T. Record Maintenance: Contractor shall maintain at the Project site, on a current basis, records of all necessary contracts, shop drawings, samples, purchases, materials, equipment, maintenance and operating manuals and instructions and any other documents and revisions thereto which arise out of this Agreement or the Construction Services. U. Project Completion: Contractor shall determine Project Completion of designated portions of the Work and prepare for the Eagle County Project Manager a list of incomplete or unsatisfactory items and a schedule for their completion. 8 3. Time of Performance: 3.1 Contractor shall begin the Preconstruction Services upon full execution of this Agreement by both parties. Contractor shall complete its design review and budget review and provide County with its GMP, a detailed budget and final construction schedule on or before February 21, 2014 provided 100% design development documents are provided to Contractor in accordance with Article 2.1 F. 3.2. Contractor agrees that Construction Services shall commence within ten (10) days of County's issuance of a Notice to Proceed with Construction Services and all Construction Services shall be substantially completed in accordance with the construction schedule approved by the Project Manager. In no event shall the Completion Date be later than 270 calendar days from issuance of the Notice to Proceed, absent written agreement for an extension of time in accordance with Section 4 below. 4. Liquidated Damages 4.1. Eagle County and Contractor recognize that time is of the essence of this agreement and that County expects the Project to be substantially complete in accordance with the construction schedule approved by the Project Manager. They also recognize the delays, expense, and difficulties involved in proving a legal or arbitration preceding the actual loss suffered by Eagle County if the Project is not substantially complete in accordance with the approved schedule. Accordingly, instead of requiring such proof, Eagle County and Contractor agree that as liquidated damages (but not as a penalty) for delay beyond the completion date indicated in the schedule approved by County, Contractor shall pay County three hundred dollars ($300.00) for each day that expires after the completion date indicated in the schedule approved by the County, until the Project is complete. 4.2. If Contractor believes that a contract extension should be granted due to delays caused by excusable, inclement weather, it may request a contract extension in writing from the Eagle County Project Manager. Eagle County shall thereon grant an extension equal, in Eagle County's reasonable opinion, in duration to the delay, if any, that was caused by the excusable, inclement weather. Excusable, inclement weather is excessive snowfall, excessive rainfall, excessive freezing temperatures or excessive wind conditions, the degree or duration of which varies in excess of the average conditions expected, which is unusual for the particular time and place where the work is to be performed, or which could not have been reasonably anticipated by Contractor. 4.3. The completion dates as set forth in Paragraphs 4.1 and 4.2 above include a reasonable time for the reviews and approvals required by this agreement. Should Contractor be unreasonably delayed by the failure of any person or entity to provide review or approval within 9 such reasonable time, Contractor may be entitled to an appropriate extension of time after a written request for such extension has been submitted to and approved by the Eagle County Project Manager in writing. No time extension will be granted unless a determination is made by Eagle County, in its sole discretion that good cause exists for such extension. 4.4. All time extensions shall be made pursuant to Paragraph 7 of the General Conditions. 5. Compensation and Payment: 5.1. County has established a cost not to be exceeded for the entire scope of Work, including Preconstruction Services and Construction Services, including contingencies, based on consultation with the Architect, Engineer and FCI ("Guaranteed Maximum Price" or "GMP"). The funds appropriated for this Project will be equal to or in excess of the Guaranteed Maximum Price. 5.2. County shall pay Contractor an amount not to exceed Seventeen Thousand Five Hundred Dollars ($17,500) for Preconstruction Services described in Paragraph 2.1, subject to Paragraph 5.4 hereunder. 5.3. Additional Services, if requested by the County and approved in writing in advance of performance, that are determined by the County not to be similar in nature as described in Paragraph 2.1 through Paragraph 2.3 shall be paid to Contractor based on a GMP approved by County, which includes construction costs (or "Direct Cost of Work") as well as CM/CG Fees that are in line with Contractor, FCI proposal for the Snow Removal Equipment Facility, Gypsum, Colorado, dated October 29, 2013, attached hereto as Exhibit `B" and incorporated herein by this reference. 5.4. Notwithstanding the foregoing, neither party represents that the Project will be constructed or that Contractor will be the CM/GC in the event of Construction on this Project. It is agreed that in the event FCI is selected for Construction Services the Construction Services Fee will be established at four percent, (4.0%) of the direct cost, inclusive of the Preconstruction Services Costs, bonds, insurance and Contingency for the Project. 5.4.1. Construction Services Fee shall include all overhead and profit. Overhead shall include Contractor's off site costs, including, but not limited to, those for scheduling, estimating and support of the project. This amount is to include the Cost for key personnel and other off site office staff Profit means before tax profit. On-site costs of construction will be considered a part of the costs of the work and these costs are not to be included in the fee. Costs to be included in the Construction Services Fee shall include only those services and other items identified under the CM/GC Basic Fee column in the CM/GC Fee Structure attached hereto as Exhibit`B." 5.4.2. Adjustments in Construction Services Fee for additions or other changes that are directed by County to increase the scope of Work and related construction costs shall only be made as follows: 10 A. After the initial GMP is accepted by County and County's Project Manager, County shall be entitled to direct additions or other changes that increase the scope of Work and the construction cost up to an aggregate total of $100,000 without increasing the Construction Services Fee. B. Additions to or other changes that increase the scope of Work and construction cost after $100,000 Change Order Mark-Up "Free Zone shall be subject to a Construction Services Fee of seven percent, (7%) excluding bonds and insurance for the additional work. 5.5. Abandonment or significant reduction in the scope or magnitude of the Project will not result in a negotiated reduction of the Construction Services Fee. The Construction Services Fee will be based on the GMP and will not be subject to reduction if the GMP can be reduced through the efforts of Contractor via procurement efforts or other cost saving construction methods. 5.6. The GMP shall include all of the Contractor's obligations to be performed pursuant to the terms of the Contract Documents and include the Direct Cost of Work and the CM/GC fee as listed below: A. All items identified under "Preconstruction Fee," "CM/GC Basic Fee," "General Conditions," and "Direct Cost of Work" in the CM/GC Fee Structure attached hereto as Exhibit"C." B. All items described in Contractor, FCI CM/GC Fee & Schedule Proposal Form, dated October 31, 2013, attached as Exhibit`B"to this Agreement, C. All Preconstruction Services Fees, Construction Services Fees and Direct Cost of Work charges shall include: a. Actual wages paid for labor in the direct employ of Contractor in the performance of the Work under applicable collective bargaining agreements, or under a salary or wage agreed upon by Eagle County's Project Manager and Contractor and including other benefits, if any, as may be payable with respect thereto. If these wages are under applicable collective bargaining agreements the termination date of such agreements must be included. b. Actual salaries of Contractor's employees wherever stationed and in whatever capacity employed. c. Actual cost of pension contributions, hospitalization, vacations, medical insurance, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries or other remuneration paid to employees of Contractor and included in the cost of the Work. 11 d. The reasonable transportation, traveling and hotel expenses of Contractor or of its officers or employees incurred in discharge of duties connected with the Work. e. Actual cost of all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof Also includes any material in excess of those actually installed but required to provide reasonable allowance for waste and spoilage. f Actual payment made by Contractor to subcontractors for work performed pursuant to contract under this Agreement. g. Actual cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workmen, which are employed or consumed in performance of the Work and costs less salvage value on such items used but not consumed which remain property of Contractor. h. Actual rental charge of all necessary machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from Contractor or other, including installation, repairs and replacement, dismantling, removal, costs of lubrication, transportation and delivery costs thereof, at rental charges consistent with those prevailing in the area. i. Cost of the premiums for all bonds and insurance which are required by the Contract Documents. j. Mechanical, Electrical and Plumbing Permit fees, k. Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressive and similar petty cash items in connection with the Work. 1. Cost of removal of all debris. m. Cost incurred due to an emergency affecting the safety of person and property, to the extent not compensated by insurance or otherwise. n. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Eagle County Project Manager. o. All costs directly incurred in the performance of the Work and not included in the Construction Services Fee. p. Cost of construction support activities such as Work items included in the condition of the contract and in the specifications unless they are provided by contractors. 12 q. Indirect costs (General Condition Fees). r. Construction Services Fee, as set forth in Exhibit`B." s. Two (2) sets of as-built drawings. t. Three (3)complete bound sets of required operations and maintenance manuals and instructions. 5.6.1. The GMP includes General Conditions/General Requirements. Contractor will submit for review and acceptance by County an itemized breakdown of the General Conditions Fees for the Project in accordance with CM/GC Fee and Schedule Proposal, Special Instructions, Exhibits B and C of this Agreement. 5.6.2. Any project savings, below the Guaranteed Maximum Price, resulting from bidding of subcontractors and other costs of the work shall accrue to the County. 5.7. The funds appropriated for this Project are equal to or in excess of the contract amount. Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to County nor shall any payment be made to FCI in excess of the above amounts for any work done without the written approval of the County in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of the Colorado Revised Statutes. 5.8. Payment Procedure for Preconstruction Services. Not more often than once a month, Contractor shall submit to County an invoice for payment signed by a person authorized to sign legal documents on behalf of Contractor identifying the work completed as of the date of the invoice, and accompanied by such supporting documentation as County may reasonably require. For Preconstruction Services, County agrees to pay Contractor within thirty (30) days of receipt of a properly documented invoice. 5.8.1. Payment Procedure for Construction Services If Contractor is selected as the CM/GC, Contractor shall submit applications for payment and back-up material (e.g. Subcontractor's invoices, vender statements and receipts) as shall be reasonably required in accordance with the General Conditions. Applications for payment must be provided on AIA forms G702 and G703 in written or electronic form. These applications shall indicate the percentage of completion of each portion of the Construction Services as of the end of the period covered by the application for payment. Applications for Payment will be processed as provided in the General Conditions. 5.8.2. PROGRESS PAYMENTS: County shall make monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Construction Agreement Payments, as provided below. All progress payments will be on the basis of the progress of the Work. County 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. 13 Prior to Completion, progress payments will be in an amount equal to: Ninety-five percent of the calculated value of Work completed and materials and equipment not yet incorporated in the Work but delivered and suitably stored, less in each case the aggregate of payments previously made. The withheld percentage of the Contract Price may be retained until the Work is completed satisfactorily and finally accepted by County as provided for herein. 5.8.3. FINAL PAYMENT: Except as provided by Section 5.9 of this Agreement, within sixty (60) days of completion and acceptance of the Work by County in accordance with Section 17 of this Agreement and Paragraphs 20 and 21 of the General Conditions, County shall pay the remainder of the Contract Price. The final payment shall not be made until after final settlement of this contract has been duly advertised at least ten days prior to such final payment by publication of notice thereof at least twice in a public newspaper of general circulation published in Eagle County, and the Board of County Commissioners has held a public hearing, thereupon and complied with C.R.S. §38-26-107. Final payment shall be made in accordance with the requirements of the aforesaid statute. 5.9 County may withhold from any payments due to Contractor, to such extent as may be necessary to protect the County from loss, because of defective work or material not remedied or the failure of Contractor to carry out the Scope of Work in accordance with this Agreement. 5.10. Contractor shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following termination, which period shall be extended at County's reasonable request. County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time. 6. Independent Contractor: It is expressly acknowledged and understood by the parties hereto that nothing contained in this Agreement shall result in, or be construed as establishing, an employment relationship. Contractor shall be, and shall perform as, an independent contractor. No technician, agent, subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the employee, agent or servant of County. Contractor shall be solely and entirely responsible for its acts and for the acts of its technicians, agents, employees, and servants during the performance of this agreement. Contractor shall not represent, act, purport to act or be deemed the agent, representative, employee or servant of County. 7. No Assignment: The parties to this Agreement recognize that in entering into this Agreement, County is relying upon the resources, skill and reputation of Contractor. Therefore, Contractor may not assign its interest in the Agreement, including the assignment of any rights or delegation of any obligations provided therein, without the prior written consent of County, which consent County may withhold at its sole discretion. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall 14 not be deemed to be for the benefit of or enforceable by any third party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 8. Subcontracts: 8.1. All portions of the Work that Contractor does not perform with its own forces shall be performed under subcontracts by subcontractors prequalified by Contractor. 8.2. All subcontracts will be between Contractor and the subcontractors. 8.3. Contractor shall be responsible to the County for the acts and omissions of its agents, employees, suppliers, subcontractors performing work under a contract with Contractor and such subcontractors' lower-tier subcontractors, agents and employees. 8.4. By an appropriate written agreement, Contractor shall require the subcontractor to the extent of the Work to be performed by the subcontractor, to be bound to Contractor by the terms of the Contract Documents and to assume toward Contractor all the obligation and responsibility which Contractor, by these Documents, assumes toward the County. Said agreement shall preserve and protect the rights of the County under the Contract Documents with respect to the Work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights. Contractor shall require each subcontractor to enter into similar agreements with its subcontractors. Contractor shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the subcontractor will be bound. Each subcontractor shall similarly make copies of such Documents to its subcontractors. 8.5. Each Subcontract and material purchase order is hereby assigned to County by Contractor provided that (a) assignment is effective only after termination of the Contract by County for cause and only for those subcontract agreements which County accepts by notifying the subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under the bond relating to the Project. Each subcontract and material purchase order shall include this assignment. 8.6. Nothing contained in the Contract Documents shall be deemed to create any contractual relationship between any subcontractor of any tier and the County. 9. Insurance: At all times during the term of this Agreement, Contractor and its subcontractors shall maintain the insurance as set forth in paragraph 14 of the General Conditions: 9.1. Certificates of Insurance acceptable to the County, evidencing the above required amounts shall be filed with the County within ten (10) days from the execution of this Agreement. 10. Indemnification: 15 Contractor shall indemnify County for, and hold and defend County and its officials, boards, officers, principals and employees, harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the performance of this Agreement to the extent such cost, claim and expense is caused in whole or in part by the negligent or willful acts or omissions of Contractor. 11. Contractor Representations: 11.1. Contractor expressly recognizes that this Project must be completed within the time and fiscal constraints set forth throughout this Agreement. 11.2. Contractor further represents to the County that, by executing this Agreement, it has been informed of and has reviewed the goals of the Project; the design of the Architect; the time schedule as well as fiscal constraints of the Project; all of the Exhibits and documents attached to this Agreement, and incorporated herein by reference; and, all of the services to be provided by Contractor pursuant to the Contract Documents. Based upon this review and analysis, Contractor represents to County that it will provide all of the necessary services and perform all of the Work within the requirements of the Contract Documents. 11.3. Contractor shall perform the Scope of Work in a skillful, professional and competent manner and in accordance with the standards of care, skill, and diligence applicable to other contractors performing this type of work. 11.4. Contractor shall be responsible for the completeness and accuracy of the Work and shall correct, at its sole expense, all errors and omissions therein. The fact that County has accepted or approved the Work shall not relieve Contractor of any if its responsibilities under this Agreement. 11.5 Contractor acknowledges it is Contractor's responsibility to review all design and construction documents relating to constructability and potential conflicts. The purpose of this review is to minimize change orders due to conflicts in the Construction Documents to the greatest extent possible. 12. Contract Documents The Contract Documents which comprise the entire Agreement are made a part hereof and consist of the following: 12.1. This Agreement. 12.2. The General Conditions. 12.3. Exhibit"C": CM/GC Fee Structure dated October 16, 2013 12.4. Exhibit`B": CM/GC Fee& Schedule Proposal Form, Eagle County Regional Airport, Snow Removal Equipment Facility, Gypsum Colorado, dated October 31, 2013. 16 12.5. Exhibit"A": Eagle County's Request for Proposal and Qualifications, Preconstruction Services; Preliminary Design Drawings dated 8-30-13 by Menendez Architects and Jviation, Inc. for Eagle County Regional Airport, Snow Removal Equipment Facility; Short List Letter dated October 16, 2013 including Special Instructions for completing Exhibit B. There are currently no Contract Documents other than those listed above in this Article 12. If County accepts Contractor's proposed GMP, budget and schedule and thereby selects Contractor as the CM/GC,the budget, schedule, and final plans and specifications(as submitted to the Town of Gypsum Building Department for a building permit) will become part of the Contract Documents. Thereafter, the Contract Documents may only be altered, amended, or repealed by an executed, written change order or other amendment to this Agreement. The intent of the Contract Documents is to include all items, components and services necessary for the proper execution and completion of all the Work outlined in Section 2 of this Agreement. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings. The Contract Documents are listed above in order of priority. If a conflict exists in the terms of any of the Contract Documents, the document with a higher priority shall control. 13. Notices: Any notice required under this Agreement shall be personally delivered, mailed in the United States mail, first class postage prepaid, or sent via electronic mail ("e-mail") or facsimile ("FAX")provided an original is also promptly delivered to the appropriate party at the following addresses: The County: Eagle County Project Management Rick Ullom, Project Manager P.O. Box 850 Eagle, Colorado 81631 (970) 328-8780 (p) (970) 328-8899 (f) and a copy to: Eagle County Attorney P.O. Box 850 Eagle, Colorado 81631 (970) 328-8699 (f) The Contractor: FCI Constructors, Inc. Brad Keller, Project Manager PO Box 1767 Grand Junction, CO 81502 17 Notices shall be deemed given on the date of delivery; on the date a FAX or e-mail is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service. 14. Termination: 141 . . Notwithstanding Paragraph 14.2 hereunder, the performance of the Scope of Work may be terminated at any time in whole or in part, by County for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice of termination specifying the date upon which termination becomes effective. Upon termination, Contractor shall deliver to County all drawings, illustrations, text, data, redlined drawings and other documents entirely or partially completed, whether in electronic form or otherwise, together will all material supplied to Contractor by County. These documents must be provided to Eagle County in a usable format. In such event, Contractor shall be compensated for all work completed up to the date of termination. Final payment will be due within thirty (30) days after Contractor has delivered the last of the documents or records due the County. 14.2. If either party defaults or Contractor neglects to carry out the Work in accordance with this Agreement and fails within a ten (10) day period after receipt of written notice from the other party to correct such default or neglect with diligence and promptness, the other party may, without prejudice to other remedies, terminate this agreement. If Contractor fails to correct such deficiencies after timely notification by County, County may in addition to or as an alternative to termination correct such deficiencies and deduct the cost of correction from payments due Contractor. County may recover the reasonable costs of correcting deficiencies in an amount not exceeding that specified in the Agreement. 14.3. Upon the termination of this Agreement, Contractor agrees to deliver to County such information and items which, if this Agreement had been completed, would have been required to be furnished to the County, including completed or partially completed plans, drawings, red- lined drawings and other pertinent information, in an electronic form or otherwise, in a format usable by the County. 15. Drawings and Specifications 15.1. OWNERSHIP AND USE OF DOCUMENTS — All drawings, specifications, and copies thereof furnished by the County are and shall remain the property of the County. They are to be used only with respect to this Project and are not to be used on any other project. With the exception of one contract set for each party to this Agreement, such documents are to be returned or suitably accounted for to the County on request at the completion of the Work. Submission or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the County's common law copyright or other reserved rights. 15.2. INTERPRETATIONS - The Architect may be asked to render interpretations consistent with the intent of, and reasonably inferable from the Contract Documents, consisting of additional instructions by means of drawings or otherwise necessary for the proper execution or 18 progress of the Work, in accordance with agreed upon time limits and otherwise so as to cause no unreasonable delay. Contractor may make written request to the Architect of such interpretations and decisions. Contractor shall comply with the Architect's interpretations and such interpretation shall be incorporated into this Agreement, subject to County's review and final determination in those instances deemed necessary by the County. 16. Completion of the Work 16.1.1. When Contractor considers that the Work or a designated portion thereof is complete as defined in paragraph 2.3, Contractor shall notify County of the Completion of the Work and prepare a list of items to be completed or corrected. 16.1.2. Within ten (10) days after receipt of Contractor's notice of completion of the Work, the County, Architect and Contractor shall make an inspection of the Work to determine whether the Work has been completed in accordance with the Contract Documents and to prepare a punch list. If the Work has not been completed to the required stage, the parties shall cease the inspection and an appropriate Change Order shall be issued deducting from the payments then or thereafter due Contractor all costs associated with such premature inspection, including compensation for the Architect's additional services, if made necessary thereby. If the payments then or thereafter due Contractor are not sufficient to cover such amount, Contractor shall pay the difference to the County. If however, the Work has been completed to the required stage, a punch list shall be prepared by Architect and/or County and consist of those items listed by Contractor to be completed or corrected as supplemented by those items observed and noted during the inspection. The required number of copies of the punch list will be countersigned by the County Project Manager or other authorized County representative and the Architect and will then be transmitted to Contractor. The failure to include any items on such list shall not alter the responsibility of Contractor to complete all Work in accordance with the Contract Documents. 16.2. RIGHT OF EARLY OCCUPANCY 16.2.1. The County shall have the right to take possession of and to use any completed or partially completed portions of the Work, even if the time for Completion of the Work or such portions of the Work has not expired and even if the Work has not been finally accepted. Such possession and use shall not constitute an acceptance of such portions of the Work. 16.2.2. If the County elects to take possession of and to use any completed or partially completed portions of the Work prior to the time for Completion of the Work or portion thereof, prior to any such possession or use, an inspection shall be made by the local jurisdiction, the Project Manager and Contractor. Any and all areas so occupied will be subject to a final inspection when the Contractor complies with Article 16.1. 16.2.3. At the time of the inspection made pursuant to paragraph 16.2.2., the parties shall also agree upon the responsibilities of the County and Contractor for security, maintenance, heat, utilities, property insurance premiums, and damage to the Work. If Contractor can also satisfactorily demonstrate to the County any actual cost for warranties for the period prior to the date of Notice of Acceptance, the County shall reimburse Contractor for that portion of such cost attributable to the portion of the Work occupied by the County for the period of time of such 19 occupancy. In the event Contractor believes there will be an additional cost associated with completion of the Work while the County occupies the Work in whole or in part, Contractor shall advise the County of all such cost at or before the time of the inspection and an agreement shall be reached on the responsibilities of the County and Contractor therefor. If Contractor fails or refuses to furnish such cost information as required, Contractor hereby waives any and all rights to assert any claim therefor at any time thereafter. 17. Final Completion,Acceptance, and Final Payment 17.1. Following County's issuance of the Certificate of Completion of the Work or designated portion thereof, the issuance or a Certificate of Occupancy from the local jurisdiction, and Contractor's completion of the work on the punch list established pursuant to paragraph 16.1.2. as may have been supplemented, Contractor shall forward to the County a written notice that the Work is ready for final inspection and acceptance, and shall also forward to the County a final application for Payment. Upon receipt, the County and Architect will promptly make such inspection. When the Architect finds the Work acceptable under the Contract Documents, Architect will issue a Final Certificate of Completion. This Certificate will constitute a representation that, to the best of the Architect's knowledge, information and belief, and on the basis of observations and inspections,the Work has been completed in accordance with the terms and conditions of the Contract Documents. 17.2. NOTICE OF ACCEPTANCE — When the local jurisdiction has issued a Certificate of Occupancy, Architect has issued its Final Certificate of Completion, Contractor has fully performed all of its obligations under the Contract Documents and the same is acceptable to the County, a Notice of Acceptance shall be issued by the County, which shall establish the acceptance of the Work. 17.3. SETTLEMENT 17.3.1. The County shall not authorize final payment until all items on the punch list have been completed, the Architect issues its Final Certificate of Completion, County has received a Certificate of Occupancy from the local jurisdiction, the Notice of Acceptance is issued, and the Notice of Contractor's Final Settlement Date is published and at least 30 days have expired with no claims filed. 17.3.2. Before the County may advertise, Contractor shall: 1. Deliver to the Architect for review by the Architect and deliver to the County: a. All guaranties and warranties; b. Confirmation 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; 20 d. Two (2) sets of as-built drawings; 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, materialmen, 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; i. Any other documents required to be furnished by the Contract Documents. 2. Demonstrate to the operating personnel of the County the proper operation and maintenance of all equipment installed or furnished under the Contract Documents. 17.3.3. Upon completion of the foregoing, the Contractor's Settlement shall be advertised in accordance with Colorado law. On the date of final settlement thus advertised, and after the CM/GC has submitted a written notice to the County that no claims have been filed, final payment and settlement shall be made in full. 17.3.4. If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed before payment in full of all sums due Contractor, the County 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 evidence by filing a receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. 17.3.5. The making of final payment, after the Date of the Notice of Contract Settlement of the Project, shall constitute a waiver of all Claims by the County except those arising from: 1. Unsettled Claims; 2. Faulty or defective work appearing after Completion of the Work; 3. Failure of the Work to comply with the requirements of the Contract Documents; or 4. Terms of any warranties or special warranties required by the Contract Documents. 21 17.3.6. The acceptance of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all Claims by Contractor except those previously made in writing and separately identified by Contractor as unsettled in the final Project Application for Payment. 17.3.7. All provisions of the Contract Documents including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payments. 18. Warranties 18.1.1. Contractor warrants to the County that all work, materials and equipment furnished under the Contract Documents will be of good quality, free from faults and defects and in conformance with the Contract Documents. All work, materials or equipment not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by County, Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of paragraph 18.1.2. 18.1.2. The CM/GC shall warrant and guarantee the Work for a period of one (1) year from the date of the Notice of Acceptance. If, within one year after the Notice of Acceptance, or within such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, if any of the Work is found to be defective or not in accordance with the Contract Documents, Contractor shall correct it promptly after receipt of a written notice from the County to do so unless the County has previously given Contractor a written acceptance of such condition. This obligation shall survive both final payment for the Work or designated portion thereof and termination of this Agreement. The County shall give such notice promptly after discovery of the condition and in any event no later than one year after the issuance of the Notice of Acceptance. 18.1.3. In case of work performed for which other warranties are required by the Contract Documents, Contractor shall secure the required warranties and deliver the same to the County in accordance with paragraph 17.3.2. These warranties shall not in any way lessen Contractor's responsibilities under the Contract Documents. Whenever guarantees or warranties are required by the Contract Documents for a longer period of that one year, such longer period shall govern. 18.1.4. The establishment of the time periods noted in paragraph 18.1.2., or, such longer period of time as may be prescribed by law or by the terms of any warranty required by the Contract Documents, related only to the specific obligation of Contractor to correct the Work, and has no relationship to the time within which Contractor's obligation to comply with the Contract Documents may be sought to be enforced, nor 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. 18.2. GUARANTY INSPECTIONS AFTER COMPLETION 22 18.2.1. The County, and Contractor together shall make at least two (2) complete inspections of the Work after the issuance of the Notice of Acceptance. One such inspection, the "Six-Month Guaranty Inspection," shall be made approximately six (6) months after the issuance of the Notice of Acceptance and another inspection, the "Eleven-Month Guaranty Inspection," shall be made approximately eleven (11) months after the issuance of the Notice of Acceptance. The County shall schedule and so notify all parties concerned, including the local jurisdiction, of these inspections. 18.2.2. Written lists and reports of these inspections shall be made by the CM/GC and forwarded to the County and all of the other participants within ten (10) days after the completion of each inspection. Contractor shall immediately initiate such remedial work as may be necessary to correct any deficiencies or defective Work shown by these reports, and shall promptly complete all such remedial Work in a manner satisfactory to the Architect and the County. 18.2.3. If the CM/GC fails to promptly correct all deficiencies and effects shown by any report, the County may do so after giving Contractor ten (10) days written notice of its intention to do so and the County shall be entitled to collect from Contractor and its surety all costs and expenses incurred by it in correcting such deficiencies and defects, as well as all damages directly resulting form such deficiencies and defects. 19. Claims for Additional Costs and Damages 19.1. CLAIMS FOR ADDITIONAL COST 19.1.1. If Contractor makes a claim for an increase in the GMP, Contractor shall give the County its written notice of Claim thereof within fifteen (15) days or such other time period as may be specifically set forth elsewhere in this Agreement, whichever is the lesser, after the occurrence of the event giving rise to such claim and in all cases before proceeding to execute the Work, except in an emergency endangering life or property, in which case, Contractor shall proceed as necessary to prevent such threat. No such claim shall be valid unless so made. Any approved change in the GMP resulting from such claim shall be authorized by Change Order. 19.2. INJURY TO PERSON OR DAMAGE TO PROPERTY — Should Contractor to this Agreement suffer injury or damage to person or property because of any act or omission of the County or of any of the County's employees, agents, or others for whose acts such party is legally liable, Notice of Claim shall be made in writing to such the County within sixty (60) days after the first observance of such injury or damage. 19.3. RIGHTS AND REMEDIES 19.3.1. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to, and not a limitation of, any duties, obligations,rights or remedies otherwise imposed or available by law. 19.3.2. No action or failure to act by the County shall constitute a waiver of any right or duty afforded under the Contract Documents nor shall any such action or failure to act constitute an approval or acquiescence in any breach thereunder, except as may be specifically agreed in 23 writing. Nothing herein shall waive or be deemed a waiver of the County's governmental privileges and immunities under federal or state law. 20. Miscellaneous: 20.1. The project is under the authority of the Eagle County Project Management Department, the Director of which, or his/her designee, shall be Eagle County's liaison with Contractor with respect to the performance of the Work. 20.2. Contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement on the basis of race, color, religion, national origin, sex, sexual orientation, ancestry, physical handicap, age, political affiliation or family responsibility. 20.3. The making, execution and delivery of this Agreement by the parties hereto have not been induced by any prior or contemporaneous representation, statement, warranty or agreement as to any matter other than those herein expressed. This Agreement embodies the entire understanding and agreement of the parties, and there are no further or other agreements or understandings, written or oral, in effect between them relating to the subject matter hereof. This Agreement may not be amended, including by any modification of, deletion from or addition to the Work, except by a written document of equal formality executed by both parties hereto. 20.4. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado, without reference to choice of law rules. The parties agree that venue in any action to enforce or interpret this Agreement shall be in the District Court in the 5th District for the State of Colorado. 20.5. This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. 20.6. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provision was omitted. 20.7. In the event of litigation between the parties hereto regarding the interpretation of this Agreement, of the obligations, duties or rights of the parties hereunder, or if suit otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or specific performance, then and in such event, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. 20.8. Time is of the essence and the parties agree to notify the other if they become aware that any condition will significantly delay performance. 24 20.9. Neither party will be responsible for delays or lack of performance resulting from events beyond the reasonable control of that party. Such events include, but are not limited to, acts of God, weather conditions, fire, third party strikes, third party lock-outs, and other labor disruptions, material shortages, riots, and acts of war. 20.10. All tracings, plans, specifications, estimates, reports, date and miscellaneous items, including electronic data, purported to contribute to the completeness of the Project, the Project or the Work shall be delivered to and become the property of the County, upon County's request. However, all estimating and project management information written, developed and implemented by Contractor shall be available for review by County, but shall not become public information or available for use by any entity other than Contractor. 20.11. Basic survey notes, sketches, computations and other data prepared hereunder shall be made available to the County, upon request and become property of the County. 20.12. The Architect, County, Project Manager and all other representatives of the County shall at all times have access to the Facility to view the progress of the Work, wherever it is in preparation and progress. The CM/GC shall provide any necessary safety equipment, and safe and reasonable facilities for such access so that the Architect, Project Manager and County representatives may exercise their rights and perform their functions under the Contract Documents. 21. Prohibitions on Public Contracts for Services: 21.1 If Contractor/Consultant has any employees or subcontractors, Contractor/Consultant 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/Consultant certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Contractor/Consultant will participate in the E-verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Contract. 21.1.1. Contractor/Consultant 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/Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 21.1.2. Contractor/Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E- verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: 25 1http://wwwv.dhs.govixprevprot/prograt ms;'gc 11 8522 1 678 1 50.shtm 21.1.3. The Contractor/Consultant shall not use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 21.1.4. If the Contractor/Consultant obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor/Consultant shall be required to: (i) Notify the subcontractor and the County within three days that the Contractor/Consultant 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) of the paragraph (D) the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor/Consultant 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. 21.1.5. The Contractor/Consultant 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). 21.1.6. If a Contractor/Consultant violates these prohibitions, the County 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/Consultant shall be liable for actual and consequential damages to the County as required by law. 21.1.7. The County will notify the office of the Colorado Secretary of State if Contractor/Consultant violates this provision of this Contract and the County terminates the Contract for such breach. //Signature Page to Follow// 26 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF o*sAGtk.^ COLORADO, By and Through Its ATTEST: �, -% BOARD OF COUNTY COMMISSIONERS W 1 eTit 410k* .,_ kLQ _ :y: Clerk to the Board of Chairman County Commis '••- s tx),-.4•- __,I,„„■■••••■',-5i ve; CONTRACTOR FCI CONSTRUCTORS, INC. ED F RSMAN, PRESIDENT By: S' nature ``�`� re25)d02-An Title STATE OF COLORADO ) ) SS. COUNTY OF in`e-59- ) The foregoing instrument was acknowledged before me by Ed Tly5 m , this 541 day of ' e-W. 03u.. , 2013. My commission expires: 03E0 31.2-01L( ' Notary Public (D/MEY 0 iii V , X14 27 GENERAL CONDITIONS 1. Contractor shall provide and pay for labor, materials, equipment, tools, licenses, transportation, and other facilities and services necessary for proper execution and completion of the Work. 2. If Contractor fails to obtain the tax exemption(s) applicable to public works projects from sales, consumer, use and similar taxes, Contractor shall pay the same. County will cooperate with Contractor to obtain tax exemption for this project. 3. Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost thereof. Any failure by Contractor to do so will not relieve it from responsibility for successfully performing the Work without additional expense to the County. County assumes no responsibility for any understanding or representations concerning conditions made by any of its officers, employees or agents prior to the execution of this Agreement, unless such understanding or representations are expressly stated in the Agreement. 4. Before commencing activities, Contractor shall: (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to Contractor with the Agreement; and (3)promptly report errors, inconsistencies or omissions discovered to County. 5. Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. 6. Contractor, as soon as practicable, shall furnish in writing to the County the names of subcontractors and suppliers for each portion of the Work. 7. No charge shall be made by Contractor for hindrances or delays from any cause whatever during the progress of any portion of the Work, unless such hindrance or delay is caused in whole or in part by acts or omissions within the control of County or outside the control of Contractor, e.g., weather. In any event, County may grant an extension of time for the completion of the Work, provided it is satisfied that delays or hindrances were due to causes outside Contractor's control, e.g., weather, or to acts of omission or commission by the County, provided that such extensions of time shall in no instance exceed the time actually lost to Contractor by reason of such causes, and provided further that Contractor shall have given 28 County immediate (as reasonably determined by the circumstances, but not exceeding seven (7) calendar days)notice in writing of the cause of the detention or delay. 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. 9. Contractor warrants to County that: (1) materials and equipment furnished under the Agreement will be new and of good quality; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Agreement. 10. Contractor shall comply with and give notices required by all federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the Work. If Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to County, Contractor shall assume full responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify County in writing of any conflicts that Contractor discovers between the specifications for the Work and such governmental laws, rules and regulations. 11. Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. 12. Contractor shall furnish performance bond and a separate labor and material payment bond on forms acceptable to the County, each in an amount at least equal to the contract price as security for the faithful performance and payment of all Contractor's obligations under the contract documents. 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 the County and shall be made payable to the County. 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 right to do business is terminated in any state where any part of the project is located, or it ceases to meet the requirements of clauses (a) and (b) of the preceding paragraph, Contractor shall within five days thereafter substitute another bond and surety, both of which shall be acceptable to County. 13. Contractor shall be solely responsible for the protection of the Work and material. Contractor shall have no claim against County because of any damage or loss to the Work (except that caused by negligence of County or those for whom County is responsible), and shall be responsible for the complete restoration of damaged Work to its original condition. In the event Contractor's Work is damaged by another party, not under its supervision or control, Contractor shall make its claim directly with the party involved. If a conflict or disagreement 29 develops between Contractor and another party concerning the responsibility for damage or loss to Contractor's Work, such conflict shall not be cause for delay in Contractor's restoration of the damaged Work. 14. Contractor's Insurance: A. 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 one year after final payment. B. Insurance coverages shall be as follows: Claims under Workmen's Compensation, disability benefits, and other similar employee benefit acts, with coverage and in amounts as required by the laws of the State of Colorado; Claims for damage because of bodily injury, occupational sickness or disease, or death of its employees, and claims insured by usual personal injury liability coverage; Claims for damage because of bodily injury, sickness or disease, or death of any person other than its employees, and claims insured by usual personal injury liability coverage; and Claims for damages because of injury to or destruction of tangible property, including loss of use resulting therefrom. Contractor's Liability Insurance issued to and covering the liability for damage imposed by law upon Contractor and each subcontractor with respect to all Work performed by them under this Agreement. Contractor's Protective Liability Insurance issued to and covering the liability for damages imposed by law upon Contractor and each subcontractor with respect to all Work under this Agreement performed for Contractor by subcontractors. 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. Comprehensive Automobile Insurance shall be carried in the amount of $500,000/$1,000,000 for bodily injury and $500,000 for property damage, each occurrence. All liability and property damage insurance required hereunder shall be 30 Comprehensive General and Automobile Bodily Injury and Property Damage form of policy. Comprehensive Risk Policy Option: In lieu of the several policies specified for Contractor's Liability Insurance, a comprehensive liability and property damage insurance policy inclusive of all the insurance and requirements herein set forth, subject to the approval of the County, will be permissible. Insurance covering claims for damages to persons or property required by the preceding paragraph shall be in the following minimum amounts: Bodily Injury Liability: Each Person: $1,000,000 Each Accident or Occurrence: $2,000,000 Property Damage Liability: Each Accident or Occurrence: $1,000,000 Aggregate: $2,000,000 Insurance shall be placed jointly in the names of the County, Contractor, and any and all others obliged by contract with the County to do Work on this project, and, at the County's option, any other person or persons whom the County deems to have an insurable interest in said property, or any part thereof, payable as their several interests may appear. Any proceeds obtained from insurance provided for by this paragraph shall be paid to and held by the County as trustee. The County shall have the right to withhold payment of such proceeds until such time as the Work destroyed or damaged and covered by such insurance shall be reconstructed and shall pay such proceeds on an installment basis similar to that provided for by progress payments covering the original Work. C. Certificates of Insurance: Certificates of Insurance acceptable to the County shall be filed with the County, the Corporation and the Trustee with respect to each contractor and subcontractor prior to commencement of the Work. These Certificates shall contain provisions naming the County as an additional insured under Contractor's insurance, as more fully required by the General Conditions herein, and that coverage afforded under the policies will not be canceled until at least thirty days prior written notice has been given the County. Contractor and its subcontractors shall not permit any of its subcontractors to start Work until all required insurance have been obtained and certificates with the proper endorsements have been filed with the County. Failure of Contractor to comply with the foregoing insurance requirements shall in no way waive the County's rights hereunder. 15. The County, at its option, may purchase and maintain such liability insurance as will protect it against claims which may arise from operations under this contract. Purchasing and maintaining such insurance, however, will not relieve Contractor from purchasing and maintaining the insurance hereinbefore specified. 31 16. Before permitting any of its subcontractors to perform any Work under this contract,. Contractor shall either (a) require each of its subcontractors to procure and maintain during the life of its subcontracts, Subcontractor's General 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 County, or (b) insure the activities of its subcontractors in its own policy. 17. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless County, and Eagle County Board of Commissioners, employees and the agents of any of them, from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. 18. Progress Payments: Not more often than once a month, Contractor shall submit to County an application for payment filled out and signed by Contractor covering the work completed as of the date of the application, and accompanied by such supporting documentation as County may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the work, but delivered and suitably stored at the site or at another location agreed to in writing, the application for payment shall also be accompanied by such data, satisfactory to County, as will establish County's title to the material and equipment, and protect County's interest therein, including applicable insurance. Each subsequent application for payment shall include an affidavit of Contractor stating that all previous progress payments received on account of the work have been applied to discharge in full all of Contractor's obligations reflected in prior applications for payment. The amount of retention with respect to progress payments will be as stipulated in the Agreement. County will, within ten days after receipt of each application for payment, either indicate in writing a recommendation of payment, or return the application to Contractor indicating in writing its reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the application. County shall, within ten days of recommendation of payment, pay Contractor the amount recommended. 19. Contractor warrants and guarantees that title to all work, materials, and equipment covered by any application for payment, whether incorporated in the project or not, will pass to County at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens"). 20. Final Payment: 32 A. Upon written notice from Contractor that the work is complete, County will make a final inspection with Contractor, and will notify Contractor in writing of all particulars in which this inspection reveals that the work is incomplete or defective. Contractor shall immediately take such measures as are necessary to remedy such deficiencies. B. After Contractor has completed all such corrections to the satisfaction of County, and delivered all maintenance and operating instructions, guarantees, bonds, certificates of inspection, Contractor may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation called for in the contract documents, and such other data and schedules as County may reasonably require, together with complete and legally effective releases or waivers (satisfactory to County) of all liens arising out of, or filed in connection with the work. In lieu thereof, and as approved by County, Contractor may furnish receipts or releases in full; an affidavit of Contractor that the releases and receipts include all labor, services, material, and equipment for which lien could be filed, and that all payrolls, material, and equipment bills, and other indebtedness connected with the work, for which County or 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 furnish a bond or other collateral satisfactory to County to indemnify County against any lien. 21. Final payment shall not become due until Contractor submits to County releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Work. Final payment is subject to the Final Settlement requirements and time periods set forth in C.R.S. §38-26-107. 21.1 The County shall not authorize final payment until all items on the punch list have been completed, the Architect issues its Final Certificate of Completion,the County has received a Certificate of Occupancy from the local jurisdiction,the Notice of Acceptance is issued, and the Notice of Contractor's Final Settlement Date is published and at least 30 days have expired with no claims filed. 21.2. Before the County may advertise, Contractor shall: A. Deliver to the Eagle County Project Manager for review: 1. All guaranties and warranties; 2. A letter confirming that sales taxes from which the County is exempt have not been paid; 3. Three (3) complete bound sets of required operations and maintenance manuals and instructions; 4. Two (2) sets of as-built drawings; 33 5. To the extent not already furnished, one copy of all corrected Shop Drawings; 6. Satisfactory evidence that all payroll,material bills, and other indebtedness connected with the Work have been paid or otherwise satisfied or will be paid evidenced by the provision of conditional lien release waivers; 7. A complete and final waiver and/or release of any and all lien rights and liens from each subcontractor of all tiers, material, men, supplier, manufacturer and dealer for all labor, equipment and material used or furnished by each on the Work which may be in the form of a conditional lien release waiver conditioned upon final payment by County; 8. Consent of the surety to final payment; and 9. Any other documents required to be furnished by the Contract Documents. B. Demonstrate to the operating personnel of the County the proper operation and maintenance of all equipment. 21.3. 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. 21.4. Pursuant to C.R.S. §38-26-107, if any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is filed before payment in full of all sums due Contractor, County 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. 21.5. The making of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all claims by the County except those arising from: A. Unsettled Claims; B. Faulty or defective work appearing after Completion of the Work; C. Failure of the Work to comply with the requirements of the Contract Documents; or D. Terms of any warranties or special warranties required by the Contract Documents. 34 21.6. The acceptance of final payment, after the Date of the Notice of Contractor Settlement of the Project, shall constitute a waiver of all claims by Contractor except those previously made in writing and separately identified by Contractor as unsettled in the final Project Application for Payment. 21.7. All provisions of the Contract Documents including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment. 22. Contractor's obligation to perform and complete the Work in accordance with the contract documents shall be absolute. Neither the recommendation of any progress or final payment nor the payment by County to Contractor under the contract documents, nor any use or occupancy of the Work or any part thereof by County, nor any act of acceptance by County, nor any failure to do so, nor any correction of defective Work by County shall constitute an acceptance of Work not in accordance with the contract documents or a release of Contractor's obligation to perform the Work in accordance with the contract documents. 23. Any work in accordance with the Contract Documents that the County finds improper, Contractor will correct said work in a timely manner so as not to delay completion of the project. 24. If Contractor defaults or neglects to carry out the Work in accordance with the Agreement and fails within a ten (10) day period after receipt of written notice from the County to correct such default or neglect with diligence and promptness, the County may, without prejudice to other remedies, correct such deficiencies and Contractor shall be responsible for the cost of such correction. 25. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Agreement. Contractor shall promptly remedy damage and loss to property caused in whole or in part by Contractor, or by anyone for whose acts Contractor may be liable. 26. Contractor shall promptly correct Work rejected by County as failing to conform to the requirements of the Agreement and Contractor shall bear the cost of correcting such rejected Work. 27. Contractor warrants and guarantees to County that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of all defects shall be given to Contractor. If, within one year after the date of completion, or such longer period of time as may be prescribed by law, prescribed by the terms of any applicable warranty given by a materials supplier or required by or a part of the Agreement, any Work is found to be defective, Contractor shall promptly, without cost to County, and in accordance with County's written instructions, either correct such defective Work, or, if it has been rejected by County, remove it from the site, and replace it with non-defective work. If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, County may have the defective Work corrected or the rejected Work removed and replaced, and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. 35 28. The performance of the Work may be terminated at any time in whole, or from time to time in part, by County for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice ("Notice of Termination") specifying the extent to which performance of the Work is terminated and the date upon which termination becomes effective. After receipt of a Notice of Termination, and except as otherwise directed by County, Contractor shall, in good faith, and to the best of its ability, do all things necessary, in the light of such notice and of such requests in implementation thereof as County may make, to assure the efficient, proper closeout of the terminated Work(including the protection of County's property). Among other things, Contractor shall, except as otherwise directed or approved by County: A. stop the Work on the date and to the extent specified in the Notice of Termination; B. place no further orders or subcontracts for services, equipment or materials except as may be necessary for completion of such portion of the Work as is not terminated; C. terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination; D. assign to County, in the manner and to the extent directed by it, all of the right, title and interest of Contractor under the orders or subcontracts so terminated, in which case County shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; E. with the approval of County, settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts; and F. deliver to County, when and as directed by County, all documents and all property which, if the Work had been completed, Contractor would be required to account for or deliver to County, and transfer title to such property to County to the extent not already transferred. In the event of such termination, Contractor shall be entitled to payment for the work performed prior to the termination date, all direct costs associated with the work up to the termination date and the Construction Services Fee for the work performed prior to the termination date at the rate identified in Article 5 of the Agreement. 29. The selection of bidders shall be in accordance with the laws of Colorado. In the event 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 County. 30. Contractor acknowledges that the Work is a public work financed in whole or in part by funds of the state of Colorado and/or 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 36 of skilled and common labor employed in the Work. For purposes of this provision, "Colorado labor"means "any person who is a resident of the state of Colorado at the time of employment, without discrimination as to race, color, creed, sex, age, or religion except when sex or age is a bona fide occupational qualification. 31. 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 County contracts or subcontracts: during the performance of this Contract, Contractor agrees as follows: 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. 32. Colorado Statutes do not provide for any right of lien against public buildings. In lieu thereof, Title 38-26-107 ct seq. C.R.S., as amended,provides adequate relief for any claimant having furnished labor, materials, rental machinery,tools, equipment or services toward construction of the particular public work in that final payment may not be made to a Contractor until all such creditors have been put on notice by publication in the public press of such pending payment and given opportunity to stop payment to Contractor in the amount of such claims. 37