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HomeMy WebLinkAbout10 - Kyburz Construction - management servicesw 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. 0 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; Q 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. 4 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. S 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 7 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 9 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. M 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. 12 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. 13 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. 15 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."