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AGREEMENT BETWEEN
THE COUNTY OF EAGLE, STATE OF COLORADO
AND
KYBURZ CONSTRUCTION, INC.
EAGLE COUNTY JUSTICE CENTER -
CONSTRUCTION MANAGEMENT SERVICES
.74
THIS AGREEMENT is made this 30 day of
V_ewe , 1983, by and between the County of Eagle,
State of Colorado, by and through its Board of County
Commissioners, hereinafter referred to as the "Owner," and
Kyburz Construction, Inc., a corporation authorized to do
business in the State of Colorado, hereinafter referred to as
the "Contractor."
WITNESSETH:
WHEREAS, it is the intention of-the Owner to undertake
the planning and construction of the Eagle County Justice
Center, hereinafter referred to as the "Project." The
Project is located on approximately 10 acres in the corporate
limits of the Town of Eagle, State of Colorado, and more
particularly described on Exhibit A attached hereto and
incorporated herein by this reference; and
WHEREAS, the Architect for the Project is W. C. Muchow
and Partners Inc., and Walker McGough Foltz Lyerla, P.S.,
hereinafter referred to as the "Architect "; and
WHEREAS, the Owner desires to engage Kyburz Construction,
Inc. as the construction manager on the Project to supervise
and coordinate all aspects of the construction project from
the beginning of the design to the end of construction; and
WHEREAS, the selection of the Contractor by the Owner was
based upon a comparative evaluation of the professional
qualifications necessary for satisfactory performance of the
services required subsequent to the publication for the
submittal of"bids from qualified applicants and the Owner's
review of such bids.
Ill
NOW, THEREFORE, the Owner and the Contractor, for the
considerations hereinafter set forth, accept the relationship
of trust and confidence in each other, and agree as follows:
ARTICLE I
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of this Agreement; the
Conditions of the Contract (General, Supplementary and other
Conditions); the Drawings, Specifications and any other
documents identified as Contract Documents by the Owner and
the Contractor at the time of establishment of the Guaranteed
Maximum Cost pursuant to Article 5 herein; the Owner's
Program as referenced in Paragraph 4.1 herein; all Addenda
issued prior to; and all Modifications issued after execution
of this Agreement. These form the Contract, and all are as
fully a part of the Contract as if attached to this Agreement
or repeated herein. If anything in the Contract Documents is
inconsistent with this Agreement, the Agreement shall govern.
ARTICLE 2
THE WORK
2.1 The Contractor shall perform all the Work required by the
Contract Documents for construction supervision of the Eagle
County Justice Center (including furniture, fixtures and
equipment), as well as adjacent access roads, various utility
mains, and site drainage facilities and structures.
ARTTCi.F. 3
CONTRACTOR'S.SERVICES AND RESPONSIBILITIES
The Contractor covenants with the Owner to further the
interests of the Owner by furnishing the Contractor's skill
and judgment in cooperation with, and in reliance upon, the
services of an architect. The Contractor agrees to furnish
business administration and management services and to
perform in an expeditious and economical manner consistent
with the interests of the Owner.
BASIC SERVICES
The Contractor's Basic Services consist of the two Phases
described below.
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3.1 PRECONSTRUCTION PHASE
3.1.1 Provide preliminary evaluation of the program and
Project budget requirements, each in terms of the other.
With the Architect's assistance, prepare preliminary
estimates of Construction Cost for early schematic designs
based on area, volume or other standards. Assist the Owner
and the Architect in achieving mutually agreed upon program
and Project budget requirements and other design parameters.
Provide cost evaluations of alternative materials and
systems.
3.1.2 Review designs during their development. Advise on
site use and improvements, selection of materials, building
systems and equipment and methods of Project delivery.
Provide recommendations on relative feasibility of
construction methods, availability of materials and labor,
time requirements for procurement, installation and
construction, and factors related to cost including, but not
limited to, costs of alternative designs or materials,
preliminary budgets and possible economies.
3.1.3 Provide for the Architect's and the Owner's review
and acceptance, and periodically update, on a monthly basis,
a Project Schedule that coordinates and integrates the
Contractor's services, the Architect's services and the
Owner's responsibilities with anticipated construction
schedules.
3.1.4 Prepare for the Owner's approval a more detailed
estimate of Construction Cost, as defined in Article 5,
developed by using estimating techniques which anticipate the
various elements of the Project, and based on Schematic
Design Documents prepared by the Architect. Update and
refine this estimate periodically as the Architect prepares
Design Development and Construction Documents. Advise the
Owner and the Architect if it appears that the Construction
Cost may exceed the Project budget. Make recommendations for
corrective action.
3.1.5 Coordinate Contract Documents by consulting with the
Owner and the Architect regarding Drawings and Specifications
as they are being prepared, and recommending alternative
solutions whenever design details affect construction
feasibility, cost or schedules.
3.1.5.1 Provide recommendations and information to the Owner
and the Architect regarding the assignment of
responsibilities for safety precautions and programs;
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temporary Project facilities; and equipment, materials and
services for common use of Contractors. Verify that the
requirements and assignment of responsibilities are included
in the proposed Contract Documents.
3.1.5.2 Advise on the separation of the Project into
Contracts for various categories of Work. Advise on the
method to be used for selecting Subcontractors and awarding
Subcontracts. If separate Subcontracts are to be awarded,
review the Drawings and Specifications and make
recommendations as required to provide that (1) the Work of
the separate Subcontractors is coordinated, (2) all
requirements for the Project have been assigned to the
appropriate separate Subcontract, (3) the likelihood of
jurisdictional disputes has, been minimized, and (4) proper
coordination has been provided for phased construction.
3.1.5.3 Develop a Project Construction Schedule providing
for all major elements such as phasing of construction and
times of commencement and completion required of each
separate Subcontractor. Provide the Project Construction
Schedule for each set of Bidding Documents.
3.1.5.4 Prepare a schedule for the purchase of materials and
equipment requiring long lead time procurement, and
coordinate the schedule with the early preparation of
portions of the Contract Documents by the Architect.
Expedite and coordinate delivery of these purchases.
3.1.6 Provide an analysis of the types and quantities of
labor required for the Project and review the availability of
appropriate categories of labor required for critical
Phases. Make recommendations for actions designed to
minimize adverse effects of labor shortages.
3.1.6.1 Identify or verify applicable requirements for equal
employment opportunity programs for inclusion in the proposed
Contract Documents.
3.1.7 Set pre - qualification criteria for Bidders with the
input of the Owner and develop Bidders' interest in the
Project. Establish bidding schedules. Issue Bidding
Documents to Bidders. Conduct pre -bid conferences to
familiarize Bidders with the Bidding Documents and management
techniques and with any special systems, materials or
methods. Assist the Architect with the receipt of questions
from Bidders, and with the issuance of Addenda.
3.1.7.1 With the Architect's assistance, receive Bids and
prepare bid analyses for the award of Subcontracts.
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3.1.8 With the Architect's assistance, conduct pre -award
conferences with successful Bidders. Prepare Construction
Subcontracts and advise the Owner on the acceptability of
Subcontractors and material suppliers proposed by
Subcontractors.
3.2 CONSTRUCTION PHASE
The Construction Phase will commence with the award of the
initial Construction Subcontract or purchase order and,
together with the Contractor's obligation to provide Basic
Services under this Agreement, will end 30 days after final
payment to the Contractor is due.
3.2.1 Unless otherwise provided in this Agreement and
incorporated in the Contract Documents, the Contractor, in
cooperation with the Architect, shall provide administration
of the Contracts for Construction as set forth below, and in
the 1976 Edition of AIA Document A201, General Conditions of
the Contract for Construction, as amended for purposes of
this Agreement. A copy of the aforementioned document with
the amendments thereto is attached to this Agreement and made
a part hereof by reference.
3.2.2 Provide administrative, management and related
services as required to coordinate Work of the Subcontractors
with each other and with the activities and responsibilities
of the Contractor, the Owner and the Architect to complete
the Project in accordance with the Owner's objectives for
cost, time and quality_. Provide sufficient organization,
personnel and management to carry out the requirements of
this Agreement.
3.2.2.1 Schedule and conduct pre- construction, construction
and progress meetings to discuss such matters as procedures,
progress, problems and scheduling. Prepare and promptly
distribute minutes.
3.2.2.2 Update the Project Construction Schedule
incorporating the activities of Subcontractors on the
Project, including activity sequences and durations,
allocation of labor and materials, processing of Shop
Drawings, Product Data and Samples, and delivery of products
requiring long lead time procurement. Include the Owner's
occupancy requirements showing portions of 'the Project having
occupancy priority. Update and reissue the Project
Construction Schedule as required to show current conditions
and revisions required by actual experience.
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3.2.2.3 Endeavor to achieve satisfactory performance from
each of the Subcontractors. Take action when requirements of
a Subcontract are not being fulfilled, and the nonperforming
party will not take satisfactory corrective action.
3.2.3 Revise and refine the approved estimate of
Construction Cost, incorporate approved changes as they
occur, and develop cash flow reports and forecasts as needed.
3.2.3.1 Provide monthly cash flow projections throughout the
construction phase.
3.2.3.2 Provide regular monitoring of the approved estimates
of Construction Cost, showing actual costs for activities in
progress and estimates for uncompleted tasks. Identify
variances between actual and budgeted or estimated costs, and
advise the Owner and the Architect whenever projected costs
exceed budgets or estimates.
3.2.3.3 Maintain cost accounting records on authorized Work
performed under unit costs, additional Work performed on the
basis of actual costs of labor and materials, or other Work
requiring accounting records.
3.2.3.4 Recommend necessary or desirable changes to the
Architect and the Owner, review requests for changes,
negotiate Subcontractors' proposals, and submit to the
Architect and the Owner.
3.2.3.5 Develop and implement procedures for the review and
processing of Applications by Subcontractors for progress and
final payments. Make recommendations to the Architect for
certification to the Owner for payment.
3.2.4 Review the safety programs developed by each of the
Contractors as required by their Contract Documents and
coordinate the safety programs for the Project.
3.2.5 Obtain building permits and special permits for
permanent improvements, excluding permits required to be
obtained directly by the various Subcontractors. Verify that
the Owner has paid applicable fees and assessments. Assist
in obtaining approvals from authorities having jurisdiction
over the Project.
3.2.6 If required, assist the Owner in selecting and
retaining the professional services of surveyors, special
consultants and testing laboratories. Coordinate their
services.
[:
7) D
3.2.7 Determine in general that the Work of each
Subcontractor is being performed in accordance with the
requirements of the Contract Documents. Endeavor to guard
the Owner against defects and deficiencies in the Work. As
appropriate, require special inspection or testing, or make
recommendations to the Architect regarding special inspection
or testing, of Work not in accordance with the provisions of
the Contract Documents whether or not such Work be then
fabricated, installed or completed. Subject to review by the
Architect, reject Work which does not conform to the
requirements of the Contract Documents.
3.2.8 Consult with the Architect and the Owner if any
Subcontractor requests interpretations of the meaning and
intent of the Drawings and Specifications, and assist in the
resolution of questions which may arise.
3.2.9 Receive Certificates of Insurance from the
Subcontractors, and forward a copy to the Owner.
3.2.10 Receive from the Subcontractors and review all Shop
Drawings, Product Data, Samples and other submittals.
Coordinate them with information contained in related
documents and transmit to the Architect those recommended for
approval. In collaboration with the Architect, establish and
implement procedures for expediting the processing and
approval of Shop Drawings, Product Data, Samples and other
submittals.
3.2.11 Record the progress of the Project. Submit written
progress reports to the Owner and the Architect including
information on each Subcontractor and each Subcontractor's
Work, as well as the entire Project, showing percentage of
completion and the number and amounts of Change Orders. Keep
a daily log containing a record of weather, Subcontractors'
Work on the site, number of workers, Work accomplished,
problems encountered, and other similar relevant data as the
Owner may require. Make the log available to the Owner and
the Architect.
3.2.11.1 Maintain at the Project site, on a current basis: a
record copy of all Subcontracts, Drawings, Specifications,
Addenda, Change Orders and other Modifications, in good order
and marked to record all changes made during construction;
Shop Drawings; Product Data; Samples; submittals; purchases;
materials; equipment; applicable handbooks; maintenance and
operating manuals and instructions; other related documents
and revisions which arise out of the Subcontracts or Work.
Maintain records, in duplicate, of principal building layout
lines, elevations of the bottom of footings, floor levels and
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key site elevations certified by a qualified surveyor or
professional engineer. Make all records available to the
Owner and the Architect. At the completion of the Project,
deliver all such records to the Architect for the Owner.
3.2.12 Arrange for delivery and storage, protection and
security for materials, systems and equipment which are a
part of the Project, until such items are incorporated into
the Project.
3.2.13 With the Architect and the Owner's maintenance
personnel, observe the Subcontractors' checkout of utilities,
operational systems and equipment for readiness and assist in
their initial start -up and testing.
3.2.14 When the Contractor considers each Subcontractor's
Work or a designated portion thereof substantially complete,
the Contractor shall prepare for the Architect a list of
incomplete or unsatisfactory items and a schedule for their
completion. The Contractor shall assist the Architect in
conducting inspections. After the Architect certifies the
Date of Substantial Completion of the Work, the Contractor
shall coordinate the correction and completion of the Work.
3.2.15 Assist the Architect in determining when the Project
or a designated portion thereof is substantially complete.
Prepare for the Architect a summary of the status of the Work
of each Subcontractor, listing changes in the previously
issued Certificates of Substantial Completion of the Work and
recommending the times within which Subcontractors shall
complete uncompleted items on their Certificate of
Substantial Completion of the Work.
3.2.16 Following the Architect's issuance of a Certificate
of Substantial Completion of the Project or designated
portion thereof, evaluate the completion of the Work of the
Subcontractors and make recommendations to the Architect when
Work is ready for final inspection. Assist the Architect in
conducting final inspections. Secure and transmit to the
Owner required guarantees, affidavits, releases, bonds and
waivers. Deliver all keys, manuals, record drawings and
maintenance stocks to the Owner.
3.2.17 The extent of the duties, responsibilities and
limitations of authority of the Contractor as a
representative of the Owner during construction shall not be
modified or extended without the written consent of the
Owner, the Contractor, and the Architect, which consent shall
not be unreasonably withheld.
NO
3.3 ADDITIONAL SERVICES
The following Additional Services shall be performed upon
authorization in writing from the Owner, and shall be paid
for the principals' and employees' time at a multiple of 1.1
times their Direct Personnel Expense. Direct Personnel
Expense is defined as the direct salaries of the Contractor's
personnel engaged on the Project, and the portion of the cost
of their mandatory and customary contributions and benefits
related thereto such as employment taxes and other statutory
employee benefits, insurance, sick leave, holidays,
vacations, pensions, and similar contributions and benefits.
3.3.1 Services related to investigations, appraisals or
evaluations of existing conditions, facilities or equipment,
or verification of the accuracy of existing drawings or other
information furnished by the Owner.
3.3.2 Services related to Owner- furnished furniture,
furnishings and equipment which are not a part of the
Project.
3.3.3 Services for tenant or rental spaces.
3.3.4 Consultation on replacement of Work damaged by fire
or other cause during construction, and furnishing services
in conjunction with the replacement of such Work.
3.3.5 Preparing to serve or serving as a witness in
connection with any public hearing, arbitration proceeding or
legal proceeding.
3.3.6 Recruiting or training maintenance personnel.
3.3.7 Inspections of, and services related to, the Project
after the end of the Construction Phase, except as otherwise
provided in Paragraph
3.3.8 Providing any other services not otherwise included
in this Agreement.
3.4 TIME
3.4.1 The Contractor shall perform Basic and Additional
Services as expeditiously as is consistent with reasonable
skill and care and the orderly progress of the Project.
ARTTC;T,F. 4
THE OWNER'S RESPONSIBILITIES
4.1 The Owner shall provide full information regarding
the requirements of the Project, including a program, which
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shall set forth the Owner's objectives, constraints and
criteria, including space requirements and relationships,
flexibility and expandability requirements, special equipment
and systems and site requirements.
4.2 The Owner shall provide a budget for the Project,
based on consultation with the Contractor and the Architect,
which shall include contingencies for bidding, changes during
construction and other costs which are the responsibility of
the Owner. The Owner shall, at the request of the
Contractor, provide a statement of funds available for the
Project and their source.
4.3 The Owner shall designate a representative
authorized to act in the Owner's behalf with respect to the
Project. The Owner, or such authorized representative, shall
examine documents submitted by the Contractor and shall
render decisions pertaining thereto promptly to avoid
unreasonable delay in the progress of the Contractor's
services.
4.4 The Owner shall retain an architect whose services,
duties and responsibilities are described in that certain
agreement between the Owner and the Architect. a^'- °d Tung 30=,
1983 -. The Terms and Conditions of the Owner- Architect
Agreement will be furnished to the Contractor, and will not
be modified without written consent of the Contractor, which
consent shall not be unreasonably withheld. Actions taken by
the Architect as agent of the Owner shall be the acts of the
Owner and the Contractor shall not be responsible for them.
4.5 The Owner shall furnish structural, mechanical,
chemical and other laboratory tests, inspections and reports
as required by law or the Contract Documents.
4.6 The Owner shall furnish such legal, accounting and
insurance counseling services as may be necessary for the
Project, including such auditing services as the Owner may
require to verify the Project Applications for Payment or to
ascertain how or for what purposes the Subcontractors have
used the monies paid by or on behalf of the Owner.
4.7 The Owner shall furnish the Contractor a sufficient
quantity of construction documents. .
4.8 The services, information and reports required by
Paragraphs 4.1 through 4.7, inclusive, shall be furnished at
the Owner's expense, and the Contractor shall be entitled to
rely upon their accuracy and completeness.
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4.9 If the Owner observes or otherwise becomes aware of
any fault or defect in the Project, or nonconformance with
the Contract Documents, prompt written notice thereof shall
be given by the Owner to the Contractor and the Architect.
4.10 The Owner reserves the right, after written notice
to Contractor, to perform work related to the Project with
the Owner's own forces, and to award contracts in connection
with the Project which are not part of the Contractor's
responsibilities under this Agreement. The Contractor shall
notify the Owner if any such independent action will in any
way compromise the Contractor's ability to meet the
Contractor's responsibilities under this Agreement.
4.11 The Owner shall furnish the required information and
services and shall render approvals and decisions as
expeditiously as necessary for the orderly progress of the
Contractor's services.
ARTTCT.F. 5
COST OF THE WORK AND
GUARANTEED MAXIMUM COST
5.1 The Owner agrees to reimburse the
Cost of the Work as defined in Article 8.
shall be in addition to the Contractor's F
Article 6. Wherever in this agreement the
Sum" or "Construction Cost" are used, they
same as Cost of the Work.
Contractor for the
Such reimbursement
ae stipulated in
terms "Contract
shall mean the
5.2 The Guaranteed Maximum Cost to the Owner shall be
determined as follows: Within thirty (30) days of the date
the Architect has provided the Contractor with design
development drawings, the Contractor will give the Owner and
the Architect a preliminary detailed budget for the Work,
hereinafter referred to as the "initial Cost of the Work" or
"preliminary detailed budget," based on the Contractor's best
estimates for all phases of the Work, which will include an
itemization of every expense the Contractor anticipates will
be needed to complete the Work. This preliminary detailed
budget is an estimate, and not guaranteed by the Contractor
to be accurate.
Within thirty (30) days after the preliminary detailed budget
is given to the Owner and the Architect, the Owner will give
written notice to the Architect and the Contractor concerning
any material changes in the scope of the Work, including any
changes, enlargements, and deletions from the Work as shown
in the design development drawings and the preliminary
11
detailed budget. During this period, the Contractor will
give the Owner assistance in modifying the preliminary
detailed budget to conform with the changes contemplated by
the Owner.
Within thirty (30) days after the Architect has given the
Contractor working plans and specifications reflecting all
the changes made by the Owner and in form sufficient for
requesting bids, the Contractor shall put the Work out for
bid and shall give the Owner written notice of the Guaranteed
Maximum Cost, which shall be the sum of all the bids to be
accepted, plus the Contractor's Fee. Copies of all bids for
Subcontracts shall be provided to the Owner and Architect at
or before the time of this notice of the Guaranteed Maximum
Cost.
This Guaranteed Maximum Cost shall be increased or decreased
for Changes in the Work as provided in Article 7.
ARTICLE 6
CONTRACTOR'S FEE
6.1 In consideration of the performance of the Contract,
the Owner agrees to pay the Contractor in current funds as
compensation for its services a Contractor's Fee of 5% of the
Guaranteed Maximum Cost, payable as follows:
A payment of $10,000 upon execution of this agreement.
The sum of $12,000.00 per month for a period not to exceed
five (5) months, payable on the fifteenth day of each
respective month after the date of this agreement; except
that if the design development drawings have not been
provided to the Contractor by the Architect within q0 days
after the date of this contract, these monthly payments shall
cease for the number of days until the Contractor receives
the design development drawings, and will then resume on the
fifteenth day of the month after receipt. In the event the
fifteenth day of any respective month falls on a Saturday,
Sunday, or legal holiday, payment will be due on the next
succeeding working day which is not a Saturday, Sunday, or
legal holiday.
During the Construction Phase, a monthly payment equal to
3 1/2% of the actual Cost of the Work performed that month
and approved for payment. Final payment to the Contractor
will be adjusted accordingly to accurately reflect the
Contractor's Fee of 5% of the Guaranteed Maximum Cost.
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6.2 The Contractor's Fee shall not vary from 5% of the
Guaranteed Maximum Cost unless Changes in the Work made in
accordance with the Contract Documents result in the actual
Cost of the Work to vary more than 5% from the Guaranteed
Maximum Cost, in which case the Contractor's Fee will be 5%
of the actual Cost of the Work.
6.3 The amounts paid to the Contractor for any work
performed under a separate bid shall not be considered part
of the Contractor's Fee.
6.4 Certain Subcontracts may be subject to retainage,
and the Contractor's Fee payments will be calculated based on
the amounts payable to the Subcontractors after retainage has
been applied. No additional retainage shall be applicable to
the Contractor's Fee itself.
ARTTC:T,F. 7
CHANGES IN THE WORK
7.1 The Owner may make Changes in the Work as provided
in the Contract Documents. The Contractor shall be
reimbursed for Changes in the Work on the basis of Cost of
the Work as defined in Article 8.
ARTTC:T,F. R
COSTS TO BE REIMBURSED
8.1 The term Cost of the Work shall mean costs
necessarily incurred in the proper performance of the Work
and payable or paid by the Contractor. Such costs shall be
at rates not higher than the standard paid in the locality
the Work except with prior consent of the Owner, and shall
include the items set forth below in this Article 8.
8.1.1 Salary of the Contractor's superintendent when
stationed at the field office. Personnel engaged, at shops
or on the road, in expediting the production or
transportation of materials or equipment, shall be considered
as stationed at the field office and their salaries paid for
that portion of their time spent on this Work.
8.1.2 Cost of contributions, assessments or taxes incurred
during the performance of the Work for such items as
unemployment compensation and social security, insofar as
such cost is based on wages, salaries, or other remuneration
paid to employees of the Contractor and included in the Cost
of the Work under Subparagraph 8.1.1.
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8.1.3 The portion of reasonable unanticipated travel and
subsistence expenses of the Contractor or of his officers or
employees incurred while traveling in discharge of duties
connected with the Work, and which has received the prior
written approval of the Owner.
8.1.4 Cost of all materials, supplies and equipment
incorporated in the Work, including costs of transportation
thereof.
8.1.5 Payments made or payable by the Contractor to
Subcontractors for Work performed pursuant to Subcontracts
under this Agreement.
8.1.6 Cost, including transportation and maintenance, of
all materials, supplies, equipment, temporary facilities and
hand tools not owned by the workers, which are consumed in
the performance of the Work, and cost less salvage value on
such items used but not consumed which remain the property of
the Contractor.
8.1.7 Rental charges of all necessary machinery and
equipment, exclusive of hand tools, used at the site of the
Work, whether rented from the Contractor or others, including
installation, minor repairs and replacements, dismantling,
removal, transportation and delivery costs thereof, at rental
charges consistent with those prevailing in the area.
8.1.8 Cost of premiums for all bonds and insurance which
the Contractor is required by the Contract Documents to
purchase and maintain.
8.1.9 Sales, use or similar taxes related to the Work
and
for which the Contractor is liable imposed by any
governmental authority.
8.1.10 Permit fees, plan check fees, royalties, damages
for
infringement of patents and costs of defending suits
therefor, and deposits lost for causes other than the
Contractor's negligence.
8.1.11 Losses and expenses, not compensated by insurance
or
otherwise, sustained by the Contractor in connection with
the
Work, provided they have resulted from causes other than
the
fault or neglect of the Contractor. Such losses shall
include settlements made with the written consent and
approval of the Owner. No such losses and expenses shall
be
included in the Cost of the Work for the purpose of
determining the Contractor's Fee. If, however, such loss
requires reconstruction and the Contractor is placed in
14
charge thereof, he shall be paid for his services a Fee
proportionate to that stated in Paragraph 6.1.
8.1.12 Cost of removal of all debris.
8.1.13 Costs incurred due to an emergency affecting the
safety of persons and property.
8.1.14 Other costs incurred in the performance of the Work
if and to the extent approved in advance in writing by the
Owner.
8.1.15 Costs incurred for any professional services of
surveyors, special consultants, and testing laboratories as
provided in Subparagraph 3.2.6.
ARTICLE 9
COSTS NOT TO BE REIMBURSED
9.1 The term Cost of the Work shall not include any of
the items set forth below in this Article 9.
9.1.1 Salaries or other compensation of the Contractor's
personnel at the Contractor's principal office and branch
offices.
9.1.2 Expenses of the Contractor's principal and branch
offices other than the field office.
9.1.3 Any part of the Contractor's capital expenses,
including interest on the Contractor's capital employed for
the Work.
9.1.4 Except as specifically provided for in Subparagraph
8.1.7 or in modifications thereto, rental costs of machinery
and equipment.
9.1.5 Overhead or general expenses of any kind, except as
may be expressly included in Article 8.
9.1.6 Costs due
anyone directly or
for whose acts the
not limited to the
Work, disposal of
or making good any
to the negligence of the Contractor,
indirectly employed by the Contractor, or
Contractor may be liable, including but
correction of defective or nonconforming
materials and equipment wrongly supplied,
damages to property.
9.1.7 The cost of any item not specifically and expressly
included in the items described in Article 8.
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9.1.8 Costs in excess of the Guaranteed Maximum Cost, if
any, as set forth in Article 5 and adjusted pursuant to
Article 7.
ARTICLE 10
DISCOUNTS, REBATES AND REFUNDS
10.1 All cash discounts shall accrue to the Contractor
unless the Owner deposits funds with the Contractor with
which to make payments, in which case the cash discounts
shall accrue to the Owner. All trade discounts, rebates and
refunds, and all returns from sale of surplus materials and
equipment shall accrue to the Owner, and the Contractor shall
make provisions so that they can be secured.
ARTICLE 11
SUBCONTRACTS, OTHER AGREEMENTS, BIDDING PROCEDURE
11.1 All portions of the Work except those of the
Contractor pursuant to Article 3 (Contractor's Services and
Responsibilities) shall be performed under Subcontracts or by
other appropriate agreement with the Contractor. If the
Contractor wishes to perform any part of the work with its
own organization, it must participate in the bidding process
in the same manner as other Subcontractors. The Contractor
shall request bids from Subcontractors and shall deliver to
the Architect and Owner all those bids which are made by
individuals or firms which the Contractor believes are
capable of satisfactorily performing the Subcontract. The
Owner will then determine, with the advice of the Contractor
and subject to the reasonable objection of the Architect,
which bids will be accepted. The bidding process for the
award of all Subcontracts shall be in conformance with
statutory requirements and adopted policies and procedures of
the Owner.
11.2 All Subcontracts shall conform to the requirement of
the Contract Documents. Subcontracts awarded on the basis of
the cost of such work plus a fee shall also be subject to the
provisions of this Agreement insofar as applicable. All
Subcontracts shall require the Subcontractor to obtain
tax - exempt status for the purchase of materials for this
Project to the extent allowed by law.
11.3 All Subcontracts shall be signed by the
Subcontractor and the Contractor; the Owner shall not be a
party to these contracts. But if the Contractor is the
successful bidder for any one or more Subcontracts, the Owner
may, at its election, become a party to the Subcontract or
may require such provision of assignment as may be
satisfactory to the Owner.
16
(7) In,
11.4 The Contractor shall not enter into any Subcontracts
until the Owner has given its written approval.
11.5 At any time prior to the awarding of the first
Subcontract, if the Owner elects not to proceed with the
construction of the Project, it may terminate this agreement
by delivering written notice to the Contractor along with
payment to the Contractor of a sum equal to $75,000 less any
Contractor's Fee payments theretofore made to the
Contractor. Upon the receipt of proper notice and payment,
the Owner and the Contractor shall be deemed to be released
from any further obligation to each other under this
agreement.
ARTICLE 12
ACCOUNTING RECORDS
12.1 The Contractor shall check all materials, equipment
and labor entering into the Work and shall keep such full and
detailed accounts as may be necessary for proper financial
management under this Agreement, and the system shall be
satisfactory to the Owner. The Owner shall be afforded
access to all the Contractor's records, books,
correspondence, instructions, drawings, receipts, vouchers,
memoranda and similar data relating to this Contract, and the
Contractor shall preserve all such records for a period of
three years, or for such longer period as may be required by
law, after the final payment.
ARTICLE 13
APPLICATIONS FOR PAYMENT
13.1 The Contractor shall, at least ten days before each
payment falls due, deliver to the Architect an itemized
statement, notarized if required, showing in complete detail
all moneys paid out or costs incurred by him on account of
the Cost of the Work during the previous month for which he
is to be reimbursed under Article 5 and the amount of the
Contractor's Fee due as provided in Article 6, together with
payrolls for all labor and such other data supporting the
Contractor's right to payment for Subcontracts or materials
as the Owner or the Architect may require.
ARTICLE 14
PAYMENTS TO THE CONTRACTOR
14.1 On or before the first day of each respective month,
the Contractor shall deliver to the Owner its Application for
17
0
Payment referred to in Article 13. In the event the first
day of any respective month falls on a Saturday, Sunday, or
legal holiday, the Application for Payment shall be delivered
to the Owner the next succeeding working day which is not a
Saturday, Sunday, or legal holiday.
14.1.1 The Owner and Architect will concurrently review the
Contractor's Applications for Payment and will promptly take
appropriate action thereon as provided in the Contract
Documents. Such amount as the Architect may recommend for
payment shall be payable by the Owner not later than fifteen
days after the Contractor's delivery to the Owner of its
Application for Payment, including the applicable portion of
the Contractor's Fee. In the event the fifteenth day
referred to herein falls on a Saturday, Sunday, or legal
holiday, payment shall be due on the next succeedng working
day which is not a Saturday, Sunday, or legal holiday.
14.1.2 In taking action on the Contractor's Applications
for Payment, the Owner and Architect shall be entitled to
rely on the accuracy and completeness of the information
furnished by the Contractor and shall not be deemed to
represent that they have made audits of the supporting data,
exhaustive or continuous on -site inspections or that they
have made any examination to ascertain how or for what
purposes the Contractor has used the moneys previously paid
on account of the Contract.
14.2 Final payment, constituting the entire unpaid
balance of the Cost of the Work and of the Contractor's Fee,
shall be paid by the Owner to the Contractor thirty (30) days
after Substantial Completion of the Work unless otherwise
stipulated in the Certificate of Substantial Completion,
provided the Work has been completed, the Contract fully
performed, and final payment has been recommended by the
Architect.
14.3 Payments due and unpaid under the Contract Documents
shall bear interest from the date payment is due at the rate
of 1.5% per month, or fraction thereof.
ARTICLE 15
TERMINATION OF CONTRACT
15.1 The Contract may be terminated by the Contractor as
provided in the Contract Documents.
lip
15.2 Except as otherwise provided in Subparagraph 11.5,
if the Owner terminates the Contract as provided in the
Contract Documents, he shall reimburse the Contractor for any
unpaid Cost of the Work due him under Article 5, plus (1) the
unpaid balance of the Fee computed upon the Cost of the Work
to the date of termination at the rate of the percentage
named in Article 6, or (2) if the Contractor's Fee be stated
as a fixed sum, such an amount as will increase the payments
on account of his Fee to a sum which bears the same ratio to
the said fixed sum as the Cost of the Work at the time of
termination bears to the adjusted Guaranteed Maximum Cost, if
any, otherwise to a reasonable estimated Cost of the Work
when completed. The Owner shall also pay to the Contractor
fair compensation, either by purchase or rental at the
election of the Owner, for any equipment retained. In case
of such termination of the Contract the Owner shall further
assume and become liable for obligations, commitments and
unsettled claims that the Contractor has previously
undertaken or incurred in good faith in connection with said
Work. The Contractor shall, as a condition of receiving the
payments referred to in this Article 15, execute and deliver
all such papers and take all such steps, including the legal
assignment of his contractual rights, as the Owner may
require for the purpose of fully vesting in himself the
rights and benefits of the Contractor under such obligatons
or commitments.
ARTICLE 16
MISCELLANEOUS PROVISIONS
16.1 Terms used in this Agreement which are defined in
the Contract Documents shall have the meanings designated in
those Contract Documents.
16.2 Financial obligations of the Owner payable after the
current fiscal year and all fiscal years thereafter are
contingent upon funds for this Agreement being appropriated,
budgeted and otherwise made available.
16.3 In the event of any irreconcilable conflict,
inconsistency, or incongruity between the provisions
contained in this Agreement and any of the provisions
contained in any of the documents incorporated by reference
herein, the provisions contained in this Agreement shall in
all respects govern and control.
19
16.4 Any covenant, condition, or provision herein
contained that is held to be invalid by any court of
competent jurisdiction shall be considered deleted from this
Agreement, but such deletion shall in no way affect any other
covenant, condition, or provision herein contained so long as
such deletion does not materially prejudice the respective
parties hereto and the respective rights and obligations
contained in the valid covenants, conditions, or provisions
of this Agreement.
16.5 Wherever in the Contract Documents the Contractor is
obligated to give notice to either the Owner or the
Architect, the documents are amended to provide that the
Contractor will send notice to both at the same time.
16.6 The Owner will cause the two architectural firms to
give written notice to the Contractor, within ten days of the
date of this agreement, stating which of the two firms is
authorized to act as the Architect for purposes of notice and
authorization. The Owner will give written notice to the
Contractor, within ten days of the date of this agreement,
stating the name of the individual who will act as the
Owner's representative.
16.7 Any provisions of this Agreement, the General
Conditions of the Contract for Construction, 1976 Edition of
AIA Document A201, as amended for purposes of this Agreement,
or any other of the Contract Documents whether or not
incorporated herein by reference, which provide for
arbitration are hereby specifically amended by the addition
of the following: The parties agree that in the event of any
dispute between the parties over the subject matter of the
Contract Documents, a civil action may be commenced in the
District Court in Eagle County, Colorado, and that only the
factual matters in dispute, including damages, will be
submitted to arbitration as provided herein. The findings of
the arbitration panel will be submitted to and binding upon
the court, which will decide all the legal issues and enter
judgment on the facts and the law. Nothing contained in any
provision of the Contract Documents which purports to negate
the foregoing shall be valid or enforceable or available in
any action at law whether by way of complaint, defense or
otherwise.
16.8 Subparagraph 7.5.1 of the General Conditions of the
Contract for Construction, 1976 Edition of AIA Document A201,
as amended for purposes of this Agreement, is modified to
read as follows: All of the Subcontracts shall require the
Subcontractors to furnish bonds in form and amounts
satisfactory to the Owner covering the faithful performance
20
of the Subcontracts and the payment of all obligations
arising thereunder if and as required in the Bidding
Documents or in the Contract Documents. All of the bonds
shall include express provisions that they run to the benefit
of the Contractor and the Owner, as their interests may
appear. The Contractor shall also be required to furnish
bonds in form satisfactory to the Owner, which shall be
provided no later than the time the Guaranteed Maximum Cost
is established, and which shall be in the amount of the
Guaranteed Maximum Cost.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement in original and two (2) counterparts the day
and year first above written.
COUNTY OF EAGLE, STATE OF COLORADO
By and Through its
ATTEST: BOARD OF COUNTY COMMISSIONERS
B y: Al
erk to the rd of David E. Mott, Chairman
ounty Commissioners P.O. Box 850
Eagle, Colorado 81631
(303) 328 -7311
CONTRACTOR:
an
a �
EXHIBIT "A"
TO THAT CERTAIN AGREEMENT DATED JUNE 30, 1983, BETWEEN
THE COUNTY OF EAGLE, STATE OF COLORADO, AND KYBURZ
CONSTRUCTION, INC., RE: EAGLE COUNTY JUSTICE CENTER,
CONSTRUCTION MANAGEMENT SERVICES
"A parcel located in Tracts 69 and 70, Section
33, Township 4 South, Range 84 West of the Sixth
Principal Meridian, Eagle County, Colorado,
according to the Independent Resurvey of said
Township and Range as approved on June 20, 1922;
said parcel containing 10.420 acres or 453,886
square feet, more or less, and being more
particularly described as follows:
Beginning at a point on the Southerly
Right -of -Way boundary of Interstate Highway No. 70,
from which the Witness Corner for Corner No. 1 of
said Tract 70 bears S.O0101'54 "W. 41.60 feet; thence
along said southerly boundary the following two (2)
courses and distances:
1) N.65 020'43 "E. 442.96 feet
2) N.6O 053'22 "E. 499.91 feet
thence departing said southerly boundary along the
following five (5) courses and distances:
1)
S.O7 °55'04
"E.
152.21
feet
2)
S.01 °40'40
"E.
205.09
feet
3)
5.25 012'04
"E.
132.11
feet
4)
S.63 °20'48
"W.
633.48
feet
5)
S.59-24-
01"W.
414.2'4
feet
to a point on the easterly boundary of the Eagle
Commercial Park; thence along said easterly boundary
the following two (2) courses and distances:
1) 5.89 028'06 "W. 21.55 feet
2) N.O0001'53 "E. 500.96 feet
thence departing said easterly boundary
S.89 058'52 "E. 21.40 feet to the Witness Corner for
Corner No. 1 of said Tract 68; thence N.O0'01'54 "E.
41.60 feet to the point of beginning, together with
all easements and rights of way appurtenant thereto;
Excepting therefrom the following described
parcel of land to be used as a public right -of -way
and containing 0.395 of an acre or 17215.8 square
feet, more or less:
A parcel located in Tract 70, Section 33,
Township 4 South, Range 84 West of the Sixth
Principal Meridian, Eagle County, Colorado according
to the Independent Resurvey of said Township and
Range as approved on June 20, 1922; said parcel
being more particularly described, with all bearings
contained herein based on a bearing of N.O0033'00 "W.
between the Town of Eagle Street Monuments at Fifth
and Broadway and Second and Broadway, as follows:
,%
Beginning at a point from which the Witness
Corner for Corner No. 4 of said Tract 70 bears
N.59 014'42 "W. 461.82 feet distant; thence
N.63 020'48 "E. 574.24 feet to a point on the Westerly
Boundary of a parcel known as the Nogal Tract;
thence along said Boundary S.25 112'04 "E. 30.01 feet
to the Northeasterly corner of a parcel of land
recorded in Book 268 at Page 466 of the Eagle County
Records; thence along the Northerly Boundary of said
parcel S.63 020'48 "W. 573.48 feet; thence
N.26 039'12 "W. 30.00 feet to the point of beginning,
hereinafter referred to as "Parcel D."
The property described hereinabove excepting
therefrom Parcel D, hereinafter referred to as the
"Property," contains 10.025 acres or 436,670.2
square feet, more or less."