09-19-2011 Preconstruction and construction agreement for 1-70 regional transportation Operations FacilityPRECONSTRUCTION AND CONSTRUCTION AGREEMENT FOR
THE I -70 REGIONAL TRANSPORTATION OPERATIONS FACILITY (RTOF)
THIS AGREEMENT ( "Agreement") is made this 19th day of September, 2011, by and
between the Town of Avon, a Colorado home rule municipality, acting by and through the Town
Council ( "Town ") and FCI Constructors, Inc., a company organized and existing by virtue of the
laws of the State of Colorado (hereinafter referred to as "FCI" or "Contractor ").
WHEREAS, the Town intends to design and construct site improvements at the Swift Gulch
Site located at 500 Swift Gulch Road in Avon, Colorado including grading, drainage, retaining
walls, utilities, construction of drive- through bus wash and maintenance facility and bus storage
(the "Project ")
WHEREAS, the Architect/Engineer (A/E) for the Project is Camp, Dresser, and McKee, Inc.,
( "CDM ") 555 17th Street, Suite 1100, Denver, Colorado 80202, ( "Architect" or "A/E "); and
WHEREAS, the Town seeks professional preconstruction services to facilitate and assist with
the design of the Project and final construction services to complete the facility as designed; and
WHEREAS, Contractor represents to the Town that it is authorized to do business in the state of
Colorado, and that it has, by virtue of its capabilities of budgeting, cost estimating, management,
and personnel the required technical and professional expertise to perform the scope of Work set
forth in Section 2 hereunder.
NOW THEREFORE, the Town and Contractor, for the consideration hereinafter set forth,
agree as follows:
1. Definitions
1.1. "Agreement" or "Contract" means this written agreement.
1.2. "Architect" or "A/E" means CDM, Inc., or such other professional architect, or group or
association or professional corporation of such approved professional architects, engineers and
consultants, who have contracted with the Town to accomplish the architectural and engineering
services necessary to the Work.
1.3. "Change Order" means a written order to the CM /GC signed by the Town or the Project
Manager and the CM/GC, issued after the execution of this Agreement, authorizing a change in the
Work, the method or manner of performance, or an adjustment in the Guaranteed Maximum Price,
Preconstruction Services, Construction Services, or the Contract Time.
1.4. "CM/GC" means Construction Manager /General Contractor
1.5. "Colorado Labor" means as provided in C.R.S. §8 -17 -101 et seq. as amended.
1.6. "Completion Date" means the first date when all of the following have occurred: the date
that the A/E and Project Manager have certified that construction is completed in accordance with
Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
December 7, 2011 ejh
the Contract Documents, the local jurisdiction has issued a Certificate of Occupancy, and the date
the Town can fully occupy or utilize the Work for the purpose for which it is intended.
1.7. "Construction Documents" means the drawings and specifications that set forth in detail
requirements for the construction of the Project. "100% Construction Documents" means 100%
Design Documents with further detailed drawings and sections for constructability and written
specifications for 100% ability to construct the project.
1.8. "Contingency" means the set percentage of the construction contract amount budgeted for
unforeseen emergencies or design shortfalls identified after the construction project commences.
1.9. "Contract Documents" means this Agreement, Amendments to this Agreement, Conditions
of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Notices
to Proceed, Change Orders, Addenda to the RFP issued prior to execution of this Agreement, if any,
and other documents as identified in Section 12 of this Agreement.
1.10. "Cost" means the total cost of labor, materials, provisions, supplies, fees, tests, expenses,
bonds, equipment rentals, equipment purchases, insurance, supervision, engineering, clerical, and
accounting services, the value of the use of equipment, and reasonable estimates of other
administrative costs which may be reasonably apportioned to this Project to complete it in
accordance with this Contract.
1.11. "Day" means calendar day unless specifically designated otherwise.
1.12. "Design Development" means the phase in which the A/E and other consultants prepare
the design development documents, from the approved schematic design, for submission to the
Town for its approval.
1.13. "Design Documents" means the drawings and other documents that fix and describe the
size and character of the entire project as to architectural, structural, mechanical, and electrical
systems, materials and such other elements of the Project as may be appropriate. "100% Design
Documents" means Design Documents that include grading, drainage, utility, irrigation, roadways,
field lighting, building architectural, structural, mechanical, electrical, plumbing and other
specifications necessary for a complete understanding of the scope of work for this Project."
1.14. "Drawings" means all drawings and specifications reviewed and accepted by the Town
which have been prepared by the A/E showing the Work to be done.
1.15. "Guaranteed Maximum Price" and "GMP" mean that maximum amount for which the
Work shall be accomplished.
1.16. "Notice to Proceed with Construction Services" means written notice from the Project
Manager to the CM /GC with direction to commence the Construction Services, subject to the
conditions of this Agreement.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
1.17. The "Project" means the total design and construction of which the Work performed under
the Contract Documents is a part, and may include construction by the Town or by separate
Contractors.
1.18. "Project Manager" means the individual appointed by the Town to act as the Town's
representative.
1.19. "Subcontractor" means a person, firm, corporation, or other entity supplying labor and
materials, or only labor, for the Work, under separate contact or agreement with the CM /GC or any
other subcontractor.
1.20. "Supplier" means any manufacturer, fabricator, distributor, material -man or vendor.
1.21. "Value Engineering" means the technical review and analysis of systems and materials
being considered in the design to produce the greatest value for the least cost, the object of which is
to achieve the optimum value for each construction dollar spent and keep the fiscal constraints set
forth throughout the Contract Documents.
1.22. "Work" means the preconstruction services and, if FCI is selected as the CM /CG, the
construction services and all other services required by the Contract Documents, including all other
labor, materials, equipment and services provided or to be provided by the CM /GC to fulfill FCI's
obligations. The Work may constitute the whole or a part of the Project.
2. Work
2.1. Preconstruction Services:
FCI shall perform those preconstruction services that are normally and customarily
provided during the planning and design phases of project of this nature, as more fully
described in the Town of Avon's Request for Qualifications for Construction Management at
Risk (CMAR) Services for the I -70 Regional Transportation Operations Facility (RTOF), dated
June 23, 2011, and the Request for Proposals for Construction Management at Risk (CMAR)
Services for the 1 -70 Regional Transportation Operations Facility (RTOF), dated August 1,
2011, , attached hereto as Exhibit "A," and incorporated herein by this reference (the
" Preconstruction Services ") and as identified in the CM /GC Fee Structure attached hereto as
Exhibit `B" and incorporated herein by this reference. The Preconstruction Services are
generally described as the follows:
A. Contractor will consult with, advise, assist and make recommendations to
the Town and A/E on all aspects of planning for the Project, including review and
validation of plans, cost estimates and schedules.
B. Contractor will designate a competent representative ( "Preconstruction
Representative "), and any necessary assistance, all satisfactory to the Town's
Project Manager, to attend at least bi- weekly meetings, commencing immediately
and continuing throughout the design phase of the project, as requested with the
A/E and /or Town to advise and discuss the preconstruction progress and respond
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
to questions regarding the Project. As of the date of execution of this Agreement,
Contractor has designated Brad Keller as its Preconstruction Representative. The
Preconstruction Representative shall not be changed except with the consent of
the Town's Project Manager, which consent shall not be unreasonably withheld.
C. Contractor will assist the A/E and Town at any point in the pre -
construction process to provide cost analysis comparisons of various materials,
products, or design options.
D. Contractor will provide Value Engineering services through technical
review and analysis of alternative designs, systems, and materials being
considered in the design to produce the greatest value for the least cost.
Contractor will provide cost estimates of the alternatives and evaluate the
alternatives on the basis of costs (both initial and life - cycle), time schedules,
availability of labor and materials, construction feasibility, warranties and
projected life expectancy.
E. Contractor will make budget estimates based on the Design Options and
other available information. Contractor will review and refine subsequent
estimates with quantity take -off cost estimates in increasing detail as the
development of the plans and specifications proceeds, and will advise the Town
and the A/E if it appears that the targets for the Project budget and/or completion
will not be met.
F. After the final design is selected, Contractor will provide subcontractor
prequalification and solicit subcontractor pricing, in conformance with all state
and federal regulations, with the 100% Design Documents. Contractor will then
compile Final Pricing, to include hard bid subcontractor pricing, plus any other
estimates and projections, for a comprehensive final cost estimate which shall be
presented to the Town as a Guaranteed Maximum Price ( "GMP "). Contractor
will present the GMP, a detailed budget and construction schedule within 20
working days of the issue of the 100% Construction Documents. The GMP,
budget and construction schedule must be approved by the Town before the
Design and Construction Documents are implemented and the construction
services may commence upon the Town's issuance of a Notice to Proceed for
Construction Services.
G. Contractor will review plans and specifications with the A/E for accuracy
and completeness and endeavor to eliminate areas of conflict and overlap in the
work to be performed by the various subcontractors.
H. Contractor will assist the design team in making recommendations of
sequencing based on the project parameters for determining the most cost
effective construction sequence. Contractor will provide a preliminary critical
path schedule for the completion of the design phase, procurement of long lead
items and construction phase. The anticipated construction schedule is to
complete Phase I by October 2013 or sooner. Phase II will commence after April
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
15, 2013 for the and shall be fully completed by December 31, 2014. The CM /GC
may propose alternative options for schedule to be considered provided all work
is completed no later than the specified dates.
I. Contractor will maintain an "Open Book" with the Town and agrees to
provide copies of all data, bids, estimates, takeoffs, and any other supporting
documentation generated for pricing, products, materials, and schedule analysis.
Some forms, formats and procedures may be construed as proprietary and
copyrighted material. Although available for review by the Town, said materials
such as estimating and project management information written, developed and
implemented by Contractor shall not become public information.
J. Contractor will assist Town in obtaining Building Permits if requested.
2.2. Issuance of Notice to Proceed with Construction Services:
A. If after completing Preconstruction Services, FCI's proposed GMP, detailed
budget and construction schedule are accepted by the Town, then the Town shall provide
Contractor with a Notice to Proceed with Construction Services as the Construction
Manager /General Contractor ( "CM/GC "). Any modifications to this Agreement shall be
recorded in writing as an addendum.
B. The Town, in its sole discretion, may decide not to proceed with the Project or
with Contractor as the CM/GC, or the Town may decide not to issue a Notice to Proceed
with Construction Services to Contractor for any reason or no reason at all. In the event
the Town does not proceed with the Project or does not select Contractor as the CM /GC
prior to commencement of Construction Services, Contractor will be paid for
preconstruction services performed to that point, time and materials inclusive, in an
amount not to exceed $60,500.00.
C. Upon receipt of a Notice to Proceed with Construction Services, Contractor shall
carry out and develop the overall plans produced by the A/E that have been pre- approved
by the Town; establish procedures for coordination between the A/E and Contractor's
subcontractors with respect to all aspects of the Construction Services and implement
such procedures; and supervise and direct the work of its subcontractors and coordinate
the Work with the Town's objectives of cost, time and quality, all in accordance with
Section 2.3 herein.
2.3. Construction Services:
In the event Town issues to FCI a Notice to Proceed with Construction Services, the work and
services to be provided shall include, but will not be limited to, the following (hereinafter, the
"Construction Services "):
A. Contractor shall furnish labor and Construction Services (1) which expeditiously,
economically and properly complete the Project in the manner most consistent with the
Town's interests and objectives; and (2) in accordance with the highest standards
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
currently practiced by persons and entities performing comparable labor and services on
projects similar in size, complexity and cost in the State of Colorado.
B. Supervision: Contractor shall supervise and direct the Construction Services, and
shall be solely responsible for all construction means, methods, techniques, sequences,
and procedures and shall coordinate all portions of the Work under this Agreement.
Contractor shall be responsible to the Town for the acts and omissions of Contractor's
subcontractors, agents, employees and any other persons performing any of the Work or
furnishing materials under a contract with Contractor.
C. Meeting Attendance: Contractor shall meet regularly with the A/E and the Town
to discuss progress, present material and information and respond to questions regarding
the Project. Contractor will be responsible for submitting to the Town, within five working
days, the minutes of all meetings during the preconstruction and construction phases.
Schedule and conduct weekly progress meetings at which subcontractors, A/E, the Town,
and Contractor can discuss jointly such matters as progress, problems and scheduling.
D. Schedule: Within fifteen (15) working days of issuance of the 100% Design
Documents, Contractor shall prepare and submit a construction schedule for the
Construction Services which shall provide for the expeditious practicable execution of the
Construction Services. The schedule shall be consistent with the previously issued
schedules, not exceed time limits current under this Agreement and shall be related to the
entire project to the extent required by this Agreement. The schedule for the performance
of the work shall be a Critical Path Method system. Contractor shall provide a detailed
schedule for the operation of Contractor and subcontractors on the project, including
realistic activity sequences and durations, allocation of labor and materials, processing of
shop drawings and samples and delivery of products requiring long lead -time
procurement.
E. Project Construction Budget: Contractor shall review the project budget and
advise the Town if it appears that the Project Construction Budget will not be met and
make recommendations for corrective action. Contractor shall develop and monitor an
effective system of Project cost control; incorporated approved changes as they occur;
develop cash flow reports and forecasts as required; identify any variance between actual
and budgeted costs within project budgets; advise A/E and the Town whenever projected
costs are expected to vary from the projected budget and/or the Guaranteed Maximum
Price, and continually monitor the cost estimates to assure that the Work remains within
the applicable budget of the Guaranteed Maximum Price.
F. Coordination of Contract Documents: Contractor shall review the drawings and
specifications and recommend alternative solutions whenever design details affect
construction feasibility of schedules.
G. Plan Review: Contractor shall review plans and specifications with the A/E and
the Town so as to reduce areas of conflict and for coordination, accuracy and
completeness of the plans and specifications at the issue of the construction documents.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
H. Labor: Contractor shall arrange and provide all labor necessary to accomplish
and complete the Construction Services and analyze the types, quantity and availability of
appropriate categories of labor required for various phases of the Project.
I. Project Control: Contractor shall monitor the work of the subcontractors and
coordinate the work with the activities and responsibilities of the Town and the A/E to
complete the Project in accordance with the construction documents and the Town's
objectives of cost, time and quality.
J. Organization: Contractor shall establish on -site organization and lines of
authority in order to carry out the overall plans of the Construction Documents.
K. Communication: Contractor shall establish procedures for coordination among
the Town, the A/E, subcontractors and Contractor with respect to all aspects of the Project
and implement such procedures.
L. Monitoring: Contractor shall provide regular monitoring of the schedule as
construction progresses. Identify potential variances with the scheduled completion dates.
Review schedule for Work not started or incomplete and recommend to the Town and the
A/E of adjustments in the schedule to meet the Completion Date. Provide summary
reports of each monitoring and document all changes in schedule. Determine the adequacy
of the subcontractors' personnel and equipment and the availability of materials and
supplies to meet the schedule.
M. Cost Control: Contractor shall develop and monitor an effective system of project
cost control, showing actual costs for activities in progress and estimates for uncompleted
tasks. Incorporate approved changes as they occur.
N. Permits and Fees: Contractor shall apply for a building permit for the Facility.
The Town will pay the direct cost for the building permit. Contractor shall secure all other
permits, including grading, mechanical and electrical permits applicable to subcontractor
work and any other special permits for permanent improvements not previously obtained
by the Town.
O. Staffing: Contractor shall keep on the Project at all times, during its progress,
Chadd Nelson, as project superintendent ( "Superintendent "), and any necessary assistants,
including a Project Manager, all satisfactory to the Town, to coordinate and provide
general direction of the work and progress of the subcontractors on the Project.
Contractor's Superintendent or Project Manager shall not be changed except with the
consent of the Town, such consent to not be unreasonably withheld. Contractor's
Superintendent and Project Manager shall represent Contractor and all direction given to it
shall be as binding as if given to Contractor.
P. Contractor shall provide full -time, qualified and efficient supervision of the Work,
using their best skill and attention. Contractor shall carefully study and compare all
drawings, specifications and other instructions and shall report to the Town, and
immediately correct any error, inconsistency or omission which it may discover.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
Contractor shall inspect the work of the subcontractors at all stages and at final completion
and shall protect the Town against defects and deficiencies in such work. Contractor shall
be responsible to the Town for the acts and omissions of all its employees and agents and
all other persons performing any of the work under a contract, for which Contractor has
supervisory or inspection responsibility hereunder.
Q. Safety: Contractor shall be responsible for the safety of persons and property and
for compliance with all federal, state and local statutes roles, regulations and orders
applicable to the conduct of the Construction Services.
R. Shop Drawings and Samples: In collaboration with the A/E, Contractor shall
establish and implement procedures for expediting the processing and approval of shop
drawings and samples.
S. Reports and Project Site Documents: Contractor shall record the daily progress of
the Project in a daily log available to the Town. Submit on a monthly basis written
progress reports and summaries of meetings to the Town, including information on the
subcontractors' work, the actual cost vs. budgeted cost, actual construction point vs.
projected schedule point, reasons for any discrepancies, the percentage of completion and
the corrective actions to obtain compliance with time and cost schedules.
T. Record Maintenance: Contractor shall maintain at the Project site, on a current
basis, records of all necessary contracts, shop drawings, samples, purchases, materials,
equipment, maintenance and operating manuals and instructions and any other documents
and revisions thereto which arise out of this Agreement or the Construction Services.
U. Project Completion: Contractor shall determine Project Completion of designated
portions of the Work and prepare for the Town a list of incomplete or unsatisfactory items
and a schedule for their completion.
3. Time of Performance
3.1 Contractor shall begin the Preconstruction Services upon full execution of this
Agreement by both parties. Contractor shall complete its design and budget review and provide
the Town with its GMP, a detailed budget and final construction schedule on or before March 31,
2012.
3.2. Contractor agrees that Construction Services shall commence upon ten (10) days of
Town's issuance of a Notice to Proceed with Construction Services and all Construction Services
shall be substantially completed in accordance with the construction schedule approved by the
Town. In no event shall the Completion Dates for Construction Services be later than the dates
specified in 2.1.H, absent written agreement for an extension of time in accordance with Section
4 below.
4. Liquidated Damages
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
4.1. The Town and Contractor recognize that time is of the essence of this agreement and that
the Town expects the Project to be substantially complete in accordance with the construction
schedule approved by the Project Manager. They also recognize the delays, expense, and
difficulties involved in proving a legal or arbitration preceding the actual loss suffered by the
Town if the Project is not substantially complete in accordance with the approved schedule.
Accordingly, instead of requiring such proof, Town and Contractor agree that as liquidated
damages (but not as a penalty) for delay beyond the completion date indicated in the schedule
approved by the Town, Contractor shall pay Town one thousand ($1,000.00) for each day that
expires after the completion date indicated in the schedule approved by the Town, until the
Project is complete.
4.2. If Contractor believes that a contract extension should be granted due to delays caused by
excusable, inclement weather, it may request a contract extension in writing from the Town. The
Town shall thereon grant an extension equal, in the Town reasonable opinion, in duration to the
delay, if any, that was caused by the excusable, inclement weather. Excusable, inclement weather
is excessive snowfall, excessive rainfall, or excessive wind conditions, the degree or duration of
which varies in excess of the average conditions expected, which is unusual for the particular
time and place where the work is to be performed, or which could not have been reasonably
anticipated by Contractor.
4.3. The completion dates as set forth in Paragraph 2.1.1-1 above include reasonable time for
the reviews and approvals required by this Agreement and the referenced Contract Documents
and Specifications. Should Contractor be unreasonably delayed by the failure of any person or
entity to provide review or approval within such reasonable time, Contractor shall be entitled to
an appropriate extension of time after a written request for such extension has been submitted to
and approved by the Town in writing. No time extension will be granted unless a determination
is made by the Town, in its sole discretion that good cause exists for such extension.
4.4. All time extensions shall be made pursuant to Article 12 of the General Conditions.
5. Compensation and Pavment
5.1. The Town has established a cost not to be exceeded for the entire scope of Work,
including Preconstruction Services and Construction Services, including contingencies, based
on consultation with the A/E and FCI ( "Guaranteed Maximum Price" or "GMP "). The
Town shall appropriate funds for this Project that are equal to or in excess of the Guaranteed
Maximum Price.
5.2. Town shall pay Contractor an amount not to exceed Sixty thousand five hundred dollars
($60,500.00) for Preconstruction Services described in Paragraph 2.1, subject to Paragraph 5.4
hereunder.
5.3. Additional Services, if requested by the Town and approved in writing in advance of
performance, that are determined by the Town and Contractor not to be similar in nature as
described in Paragraph 2.1 through Paragraph 2.3 shall be paid to Contractor based on a GMP
approved by the Town, which includes construction costs (or "Direct Cost of Work ") as well as
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
CM/CG Fees that are in line with Contractor's proposal for the I -70 RTOF, Avon, Colorado,
dated July 24, 2011, attached hereto as Exhibit "C" and incorporated herein by this reference.
5.4. Notwithstanding the foregoing, neither party represents that the Project will be
constructed or that Contractor will be the CM/GC in the event of Construction on this Project. It
is agreed that in the event Contractor is selected for Construction Services the Construction
Services Fee will be established at four point five percent (4.5 %) of the total cost, inclusive of
the Preconstruction Services Costs and exclusive of Contingency, bonds and insurance for the
Project.
5.4.1. Construction Services Fee shall include all overhead and profit. Overhead shall include
Contractor's off site costs, including, but not limited to, those for scheduling, estimating and
support of the project. This amount is to include the Cost for key personnel and other off site
office staff. Profit means before tax profit. On -site costs of construction will be considered a
part of the costs of the work and these costs are not to be included in the fee. Costs to be
included in the Construction Services Fee shall include only those services and other items
identified under the CM/GC Basic Fee column in the CM/GC Fee Structure attached hereto as
Exhibit "B."
5.4.2. Adjustments in Construction Services Fee for additions or other changes that are
directed by the Town to increase the scope of Work and related construction costs shall only be
made as follows:
A. After the initial GMP is accepted by the Town, the Town shall be entitled to direct
additions or other changes that increase the scope of Work and the construction
cost up to an aggregate total of $50,000 without increasing the Construction
Services Fee.
B. Additions to or other changes that increase the scope of Work and construction
cost shall be subject to a Construction Services Fee of seven percent (7 %)
excluding bonds and insurance for the additional work.
5.5. Abandonment or significant reduction in the scope or magnitude of the Project will not
result in a negotiated reduction of the Construction Services Fee. Issuance of Notice to
Proceed for Construction Services for Phase 1 does not constitute issuance of Notice to
Proceed for Phase 2 Construction Services. The Construction Services Fee will be
based on the GMP and will not be subject to reduction if the GMP can be reduced
through the efforts of Contractor via procurement efforts or other cost saving construction
methods.
5.6. The GMP shall include all of the Contractor's obligations to be performed pursuant to
the terms of the Contract Documents and include actual fees and costs as outlined below:
A. All items identified under "Preconstruction Fee," "CM/GC Basic Fee," "General
Conditions," and "Direct Cost of Work" in the CM /GC Fee Structure attached
hereto as Exhibit "B."
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
B. All items described in CM /GC Fee & Schedule Proposal Form, dated July 29, 2011,
attached as Exhibit "C" to this Agreement.
C. All Preconstruction Services Fees, Construction Services Fees and Direct Cost of
Work charges shall include:
a. Actual wages paid for labor in the direct employ of Contractor in the
performance of the Work under applicable collective bargaining agreements, or
under a salary or wage agreed upon by the Town and Contractor and including
other benefits, if any, as may be payable with respect thereto. If these wages are
under applicable collective bargaining agreements the termination date of such
agreements must be included.
b. Actual salaries of Contractor's employees wherever stationed and in whatever
capacity employed.
c. Actual cost of pension contributions, hospitalization, vacations, medical
insurance, assessments or taxes for such items as unemployment compensation
and social security, insofar as such cost is based on wages, salaries or other
remuneration paid to employees of Contractor and included in the cost of the
Work.
d. The reasonable transportation, traveling and hotel expenses of Contractor or of
its officers or employees incurred in discharge of duties connected with the
Work.
e. Actual cost of all materials, supplies and equipment incorporated in the Work,
including costs of transportation thereof. Also includes any material in excess of
those actually installed but required to provide reasonable allowance for waste
and spoilage.
f. Actual payment made by Contractor to subcontractors for work performed
pursuant to contract under this Agreement.
g. Actual cost, including transportation and maintenance, of all materials, supplies,
equipment, temporary facilities and hand tools not owned by the workmen,
which are employed or consumed in performance of the Work and costs less
salvage value on such items used but not consumed which remain property of
Contractor.
h. Actual rental charge of all necessary machinery and equipment, exclusive of
hand tools, used at the site of the Work, whether rented from Contractor or
other, including installation, repairs and replacement, dismantling, removal,
costs of lubrication, transportation and delivery costs thereof, at rental charges
consistent with those prevailing in the area.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
i. Cost of the premiums for all bonds and insurance which are required by the
Contract Documents.
j. Mechanical, Electrical and Plumbing Permit fees,
k. Minor expenses such as telegrams, long distance telephone calls, telephone
service at the site, expressive and similar petty cash items in connection with the
Work.
1. Cost of removal of all debris.
m. Cost incurred due to an emergency affecting the safety of person and property,
to the extent not compensated by insurance or otherwise.
n. Other costs incurred in the performance of the Work if and to the extent
approved in advance in writing by the Town.
o. All costs directly incurred in the performance of the Work and not included in
the Construction Services Fee.
p. Cost of construction support activities such as Work items included in the
condition of the contract and in the specifications unless they are provided by
contractors.
q. Indirect costs (General Condition Fees).
r. Construction Services Fee, as set forth in Exhibit "C."
s. Two (2) sets of as -built drawings and one electronic .pdf copy as described in
the Contract Documents and Specifications.
t. Three (3) complete bound sets of required operations and maintenance manuals
and instructions and one electronic .pdf copy as described in the Contract
Documents and Specifications.
u. Full testing, Owner training, system start-up, and commissioning as described in
the Contract Documents and Specifications.
5.6.1. The GMP includes General Conditions /General Requirements. Contractor will submit
for review and acceptance by the Town an itemized breakdown of the General Conditions Fees
for the Project in accordance with Exhibits B and C of this Agreement.
5.6.2. Any project savings, below the Guaranteed Maximum Price, resulting from bidding of
subcontractors and other costs of the work shall accrue to the Town.
5.7. The funds appropriated for this Project are equal to or in excess of the contract amount.
Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
to the Town nor shall any payment be made to FCI in excess of the above amounts for any work
done without the written approval of the Town in accordance with a budget adopted by the Town
Council in accordance with the provisions of the Colorado Revised Statutes.
5.8. Payment Procedure for Preconstruction Services. Not more often than once a month,
Contractor shall submit to the Town an invoice for payment signed by a person authorized to
sign legal documents on behalf of Contractor identifying the work completed as of the date of the
invoice, and accompanied by such supporting documentation as Town may reasonably require.
For Preconstruction Services, Town agrees to pay Contractor within thirty (30) days of receipt of
a properly documented invoice.
5.8.1. Payment Procedure for Construction Services. If Contractor is selected as the CM /GC,
Contractor shall submit applications for payment and back -up material (e.g. Subcontractor's
invoices, vender statements and receipts) as shall be reasonably required in accordance with the
General Conditions. Applications for payment must be provided on AIA forms G702 and G703
in written or electronic form. These applications shall indicate the percentage of completion of
each portion of the Construction Services as of the end of the period covered by the application
for payment. Applications for Payment will be processed as provided in the General Conditions.
5.8.2. Progress Payments. Town shall make monthly progress payments on account of the
Contract Price on the basis of Contractor's Applications for Construction Agreement Payments,
as provided below. All progress payments will be on the basis of the progress of the Work.
Town shall have the right to request and inspect supporting documentation for progress
payments, including but not limited to receipts and invoices evidencing payments of charges
associated with the Work.
Prior to Completion, progress payments will be in an amount equal to:
90% of the Work completed and materials and equipment not incorporated in the Work
but delivered and suitably stored until fifty percent (50 %) of the Work is performed, after
which no additional retainage shall be withheld.
Less in each case the aggregate of payments previously made.
5.8.3. Final Payment. Upon final completion and acceptance in accordance with Section 17
of this Agreement and Article 14 of the General Conditions, Town shall pay the remainder of the
Contract Price. The final payment shall not be made until after final settlement of this contract
has been duly advertised at least ten days prior to such final payment by publication of notice
thereof at least twice in a public newspaper of general circulation published in Eagle County, and
the Town Council has held a public hearing, thereupon and complied with C.R.S. §38 -26 -107.
Final payment shall be made in accordance with the requirements of the aforesaid statute.
5.9. Town may withhold from any payments due to Contractor, to such extent as may be
necessary to protect the Town from loss, because of defective work or material not remedied or
the failure of Contractor to carry out the Scope of Work in accordance with this Agreement.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
5.10. Contractor shall maintain comprehensive, complete and accurate records and accounts of
its performance relating to this Agreement for a period of three (3) years following termination,
which period shall be extended at Town's reasonable request. Town shall have the right within
such period to inspect such books, records and documents upon demand, with reasonable notice
and at a reasonable time.
6. Independent Contractor
It is expressly acknowledged and understood by the parties hereto that nothing contained in this
Agreement shall result in, or be construed as establishing, an employment relationship.
Contractor shall be, and shall perform as, an independent contractor. No technician, agent,
subcontractor, employee, or servant of Contractor shall be, or shall be deemed to be, the
employee, agent or servant of the Town. Contractor shall be solely and entirely responsible for
its acts and for the acts of its technicians, agents, employees, and servants during the
performance of this agreement. Contractor shall not represent, act, purport to act or be deemed
the agent, representative, employee or servant of the Town.
7. Not Used
8. Subcontracts
8.1. All portions of the Work that Contractor does not perform with its own forces shall be
performed under subcontracts by subcontractors prequalified by Contractor.
8.2. All subcontracts will be between Contractor and the subcontractors.
8.3. Contractor shall be responsible to the Town for the acts and omissions of its agents,
employees, suppliers, subcontractors performing work under a contract with Contractor and such
subcontractors' lower -tier subcontractors, agents and employees.
8.4. By an appropriate written agreement, Contractor shall require the subcontractor to the
extent of the Work to be performed by the subcontractor, to be bound to Contractor by the terms
of the Contract Documents and to assume toward Contractor all the obligation and responsibility
which Contractor, by these Documents, assumes toward the Town. Said agreement shall
preserve and protect the rights of the Town under the Contract Documents with respect to the
Work to be performed by the subcontractor so that the subcontracting thereof will not prejudice
such rights. Contractor shall require each subcontractor to enter into similar agreements with its
subcontractors. Contractor shall make available to each proposed subcontractor, prior to the
execution of the subcontract, complies of the Contract Documents to which the subcontractor
will be bound by this paragraph 8.6. Each subcontractor shall similarly make copies of such
Documents to its subcontractors.
8.5. Each Subcontract and material purchase order is hereby assigned to Town by Contractor
provided that (a) assignment is effective only after termination of the Contract by Town for
cause and only for those subcontract agreements which Town accepts by notifying the
subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
surety, if any, obligated under the bond relating to the Project. Each subcontract and material
purchase order shall include this assignment.
8.6. Nothing contained in the Contract Documents shall be deemed to create any contractual
relationship between any subcontractor of any tier and the Town.
9. Insurance
9.1 Insurance Generall y. The Contractor shall obtain and shall continuously maintain
during the term of this Agreement insurance of the kind and in the minimum amounts specified
in this Section 5.1. The insurance required herein shall be procured and maintained with insurers
with an A- or better rating as determined by Best's Key Rating Guide. All required insurance
shall be continuously maintained to cover all liability, claims, demands, and other obligations
assumed by the Contractor.
A. Worker's Compensation Insurance in the minimum amount required by applicable law
for all employees and other persons as may be required by law. Such policy of insurance
shall be endorsed to include the Town as a Certificate Holder.
B. Comprehensive General Liability insurance with minimum combined single limits of
Two Million Dollars ($2,000,000.00) Dollars each occurrence and of Four Million Dollars
($4,000,000.00) aggregate. The policy shall be applicable to all premises and all operations
of the Contractor. The policy shall include coverage for bodily injury, broad form property
damage (including completed operations), personal injury (including coverage for contractual
and employee acts), blanket contractual, independent contractors, products, and completed
operations. The policy shall contain a severability of interests provision. Coverage shall be
provided on an "occurrence" basis as opposed to a "claims made" basis. Such insurance
shall be endorsed to name the Town as Certificate Holder and name the Town, and its elected
officials, officers, employees and agents as additional insured parties.
C. Comprehensive Automobile Liability insurance with minimum combined single limits
for bodily injury of not less than of One Hundred Thousand Dollars ($100,000.00) each
person and each accident and for property damage of not less than Fifty Thousand Dollars
($50,000.00) each accident with respect to each of the Contractor's owned, hired and non-
owned vehicles assigned to or used in performance of the Services. The policy shall contain
a severability of interests provision. Such insurance coverage must extend to all levels of
subcontractors. Such coverage must include all automotive equipment used in the
performance of the Agreement, both on the work site and off the work site, and such
coverage shall include non - ownership and hired cars coverage. Such insurance shall be
endorsed to name the Town as Certificate Holder and name the Town, and its elected
officials, officers, employees and agents as additional insured parties.
D. Owner protective liability applying separately to each project and showing the OWNER
as Named Insured. Coverages shall remain in effect until the work is accepted by OWNER
and shall be written for limits of a minimum of $2,000,000 per occurrence and $4,000,000
annual aggregate. CONTRACTOR shall evidence coverages initially with an insurance
binder with the actual insurance policy submitted to OWNER within thirty days of effective
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
date. CONTRACTOR shall be responsible for purchasing additional insurance coverage if
the $4,000,000 aggregate is exhausted before the project is completed.
9.2 Additional Requirements for All Policies. In addition to specific requirements imposed
on insurance by this Section 9. and its subsections, insurance shall conform to all of the
following:
A. For both Contractor Insurance and Required Insurance, all policies of insurance shall be
primary insurance, and any insurance carried by the Town, its officers, or its employees shall
be excess and not contributory insurance to that provided by the Contractor; provided,
however, that the Town shall not be obligated to obtain or maintain any insurance
whatsoever for any claim, damage, or purpose arising from or related to this Agreement and
the Services. The Contractor shall not be an insured party for any Town - obtained insurance
policy or coverage.
B. For both Contractor Insurance and Required Insurance, the Contractor shall be solely
responsible for any deductible losses.
C. For Required Insurance, no policy of insurance shall contain any exclusion for bodily
injury or property damage arising from completed operations.
D. For Required Insurance, every policy of insurance shall provide that the Town will
receive notice no less than thirty (30) days prior to any cancellation, termination, or a
material change in such policy.
9.3 Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain and
continuously maintain policies of insurance in accordance with this Section 9 and its subsections
shall not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other
obligations of the Contractor arising from performance or non - performance of this Agreement.
Failure on the part of the Contractor to obtain and to continuously maintain policies providing
the required coverage, conditions, restrictions, notices, and minimum limits shall constitute a
material breach of this Agreement upon which the Town may immediately terminate this
Agreement, or, at its discretion, the Town may procure or renew any such policy or any extended
reporting period thereto and may pay any and all premiums in connection therewith, and all
monies so paid by the Town shall be repaid by Contractor to the Town immediately upon
demand by the Town, or at the Town's sole discretion, the Town may offset the cost of the
premiums against any monies due to the Contractor from the Town pursuant to this Agreement.
9.4 Insurance Certificates. Prior to commencement of the Services, the Contractor shall
submit to the Town certificates of insurance for all Required Insurance. Insurance limits, term of
insurance, insured parties, and other information sufficient to demonstrate conformance with this
Section 9 and its subsections shall be indicated on each certificate of insurance. Certificates of
insurance shall reference the Project Name as identified on the first page of this Agreement. The
Town may request and the Contractor shall provide within three (3) business days of such
request a current certified copy of any policy of Required Insurance and any endorsement of
such policy. The Town may, at its election, withhold payment for Services until the requested
insurance policies are received and found to be in accordance with the Agreement.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
10. Indemnification
Contractor shall indemnify Town for, and hold and defend Town and its officials, boards,
officers, principals and employees, harmless from, all costs, claims and expenses, including
reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in
connection with the performance of this Agreement to the extent such cost, claim and expense is
caused in whole or in part by the negligent or willful acts or omissions of Contractor.
11. Contractor Representations
11.1. Contractor expressly recognizes that this Project must be completed within the time and
fiscal constraints set forth throughout this Agreement.
11.2. Contractor further represents to the Town that, by executing this Agreement, it has been
informed of and has reviewed the goals of the Project; the design of the A/E; the time schedule
as well as fiscal constraints of the Project; all of the Exhibits and documents attached to this
Agreement, and incorporated herein by reference; and, all of the services to be provided by
Contractor pursuant to the Contract Documents. Based upon this review and analysis, Contractor
represents to Town that it will provide all of the necessary services and perform all of the Work
within the requirements of the Contract Documents.
11.3. Contractor shall perform the Scope of Work in a skillful, professional and competent
manner and in accordance with the standards of care, skill, and diligence applicable to other
contractors performing this type of work.
11.4. Contractor shall be responsible for the completeness and accuracy of the Work and shall
correct, at its sole expense, all errors and omissions therein. The fact that Town has accepted or
approved the Work shall not relieve Contractor of any if its responsibilities under this
Agreement.
11.5 Contractor acknowledges it is Contractor's responsibility to review all design and
construction documents relating to constructability and potential conflicts. The purpose of this
review is to minimize change orders due to conflicts in the Construction Documents to the
greatest extent possible.
12. Contract Documents
The Contract Documents which comprise the entire Agreement are made a part hereof and
consist of the following:
12.1. This Agreement.
12.2. The General Conditions.
12.3. Exhibit "A ": CMAR Fee and Schedule Proposal Form dated July 29, 2011
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
12.4. Exhibit `B ": CMAR Fee Structure dated July 29, 2011
12.5. Exhibit "C ": CMAR Proposal Qualifications Document dated July 22, 2011 and RFP
Response Document Dated August 12, 2011
12.6. Exhibit "D ": Request for Qualifications, Town of Avon 2011RFP02, dated June 23,
2011
12.7. Exhibit "E ": Request for Proposals, Town of Avon 2011RFP02 Part 2, dated August 1,
2011
There are currently no Contract Documents other than those listed above in this Article 12. If
Town accepts Contractor's proposed GMP, budget and schedule and thereby selects Contractor
as the CM/GC, the budget, schedule, and final plans and specifications (as approved by Owner)
will become part of the Contract Documents. Thereafter, the Contract Documents may only be
altered, amended, or repealed by an executed, written change order or other amendment to this
Agreement.
The intent of the Contract Documents is to include all items, components and services necessary
for the proper execution and completion of all the Work outlined in Section 2 of this Agreement.
The Contract Documents are complementary, and what is required by any one shall be as binding
as if required by all. Words and abbreviations which have well known technical or trade
meanings are used in the Contract Documents in accordance with such recognized meanings.
The Contract Documents are listed above in order of priority. If a conflict exists in the terms of
any of the Contract Documents, the document with a higher priority shall control.
13. Notices
Any notice required under this Agreement shall be personally delivered, mailed in the United
States mail, first class postage prepaid, or sent via facsimile provided an original is also promptly
delivered to the appropriate party at the following addresses:
Town of Avon
P.O. Box 975
One Lake Street
Avon, CO 81620
Fax: 970 - 949 -9139
The Contractor:
FCI Constructors, Inc.
3070 I -70B, Bldg. A
Grand Junction, CO 81502
Fax: 970 - 434 -7583
With Copy to:
Eric J. Heil, Town Attorney
Heil Law & Planning, LLC
2696 S. Colorado Blvd, Suite 550
Denver, CO 80222
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted and
confirmed received or, if transmitted after normal business hours, on the next business day after
transmission, provided that a paper copy is mailed the same date; or three days after the date of
deposit, first class postage prepaid, in an official depositary of the U.S. Postal Service.
14. Term and Termination
14.1 Term. This Agreement shall be effective on the 19th day of September at 12:01 a.m.,
( "Effective Date ") and shall terminate upon completion of the Services, or on a date prior to
completion of the Services or shall be terminated as may be permitted by this Agreement;
provided, however, that the Parties may mutually agree in writing to the monthly extension of
this Agreement for up to twelve (12) consecutive calendar months if such extension is approved
by the Town Manager and the Contractor and such extension does not alter or amend any of the
terms or provisions of this Agreement.
14.2 Continuing Services Required. The Contractor shall perform the Services in
accordance with this Agreement commencing on the Effective Date until such Services are
terminated or suspended in accordance with this Agreement. The Contractor shall not
temporarily delay, postpone, or suspend the performance of the Services without the written
consent of the Town Council, Town Manager, or a person expressly authorized in writing to
direct the Contractor's services.
14.3 Town Unilateral Termination. This Agreement may be terminated by the Town for any
or no reason upon written notice delivered to the Contractor at least ten (10) days prior to
termination. In the event of the Town's exercise of the right of unilateral termination as
provided by this paragraph:
A. Unless otherwise provided in any notice of termination, the Contractor shall
provide no further services in connection with this Agreement after receipt of a
notice of termination; and
B. All finished or unfinished documents, data, submittals, as -built record drawings,
studies and reports prepared by the Contractor pursuant to this Agreement shall be
delivered by the Contractor to the Town in a format useable by the Town and
shall become the property of the Town; and
C. The Contractor shall submit to the Town a final accounting and final invoice of
charges for all outstanding and unpaid Services and reimbursable expenses
performed prior to the Contractor's receipt of notice of termination and for any
services authorized to be performed by the notice of termination as provided by
Section 14.3(A) above. Such final accounting and final invoice shall be delivered
to the Town within thirty (30) days of the date of termination; thereafter, no other
invoice, bill, or other form of statement of charges owing to the Contractor shall
be submitted to or accepted by the Town.
14.4 Termination for Non - Performance. Should a party to this Agreement fail to materially
perform in accordance with the terms and conditions of this Agreement, this Agreement may be
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
terminated by the performing party if the performing party first provides written notice to the
non - performing party which notice shall specify the non - performance, provide both a demand to
cure the non - performance and reasonable time to cure the non - performance, and state a date
upon which the Agreement shall be terminated if there is a failure to timely cure the non-
performance. For purpose of this Section 4.4, "reasonable time" shall be not less than five (5)
business days. In the event of a failure to timely cure a non - performance and upon the date of
the resulting termination for non - performance, the Contractor prepare a final accounting and
final invoice of charges for all performed but unpaid Services and authorized reimbursable
expenses. Such final accounting and final invoice shall be delivered to the Town within fifteen
(15) days of the date of termination; thereafter, no other invoice, bill, or other form of statement
of charges owing to the Contractor shall be submitted to or accepted by the Town. Provided that
notice of non - performance is provided in accordance with this Section 4.3, nothing in this
Section 4.3 shall prevent, preclude, or limit any claim or action for default or breach of contract
resulting from non - performance by a Party.
14.5 Unilateral Suspension of Services. The Town may suspend the Contractor's
performance of the Services at the Town's discretion and for any reason by delivery of written
notice of suspension to the Contractor which notice shall state a specific date of suspension.
Upon receipt of such notice of suspension, the Contractor shall immediately cease performance
of the Services on the date of suspension except: (1) as may be specifically authorized by the
notice of suspension (e.g., to secure the work area from damage due to weather or to complete a
specific report or study); or (2) for the submission of an invoice for Services performed prior to
the date of suspension in accordance with this Agreement.
14.6 Reinstatement of Services Following Town's Unilateral Suspension. The Town may
at its discretion direct the Contractor to continue performance of the Services following
suspension. If such direction by the Town is made within (30) days of the date of suspension,
the Contractor shall recommence performance of the Services in accordance with this
Agreement. If such direction to recommence suspended Services is made more than thirty -one
(3 1) days following the date of suspension, the Contractor may elect to: (1) provide written
notice to the Town that such suspension is considered a unilateral termination of this Agreement
pursuant to Section 4.3; or (2) recommence performance in accordance with this Agreement; or
(3) if suspension exceeded sixty (60) consecutive days, request from the Town an equitable
adjustment in compensation or a reasonable re -start fee and, if such request is rejected by the
Town, to provide written notice to the Town that such suspension and rejection of additional
compensation is considered a unilateral termination of this Agreement pursuant to Section 4.3.
Nothing in this Agreement shall preclude the Parties from executing a written amendment or
agreement to suspend the Services upon terms and conditions mutually acceptable to the Parties
for any period of time.
14.7 Delivery of Notice of Termination. Any notice of termination permitted by this Section
14.0 and its subsections shall be addressed to the person signing this Agreement on behalf of
either Town or Contractor at the address shown below or such other address as either party may
notify the other of and shall be deemed given upon delivery if personally delivered, or forty -eight
(48) hours after deposited in the United States mail, postage prepaid, registered or certified mail,
return receipt requested.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
15. Drawings and Specifications
15.1. OWNERSHIP AND USE OF DOCUMENTS — All drawings, specifications, and copies
thereof furnished by the Town are and shall remain the property of the Town. They are to be
used only with respect to this Project and are not to be used on any other project. With the
exception of one contract set for each party to this Agreement, such documents are to be returned
or suitably accounted for to the Town on request at the completion of the Work. Submission or
distribution to meet official regulatory requirements or for other purposes in connection with the
Project is not to be construed as publication in derogation of the Town's common law copyright
or other reserved rights.
15.2. INTERPRETATIONS - The A/E may be asked to render interpretations consistent with
the intent of, and reasonably inferable from the Contract Documents, consisting of additional
instructions by means of drawings or otherwise necessary for the proper execution or progress of
the Work, in accordance with agreed upon time limits and otherwise so as to cause no
unreasonable delay. Contractor may make written request to the A/E of such interpretations and
decisions. Contractor shall comply with the A/E's interpretations and such interpretation shall be
incorporated into this Agreement, subject to Town's review and final determination in those
instances deemed necessary by the Town.
16. Completion of the Work
16.1.1. When Contractor considers that the Work or a designated portion thereof is complete as
defined in paragraph 2.3, Contractor shall notify Town of the Completion of the Work and
prepare a list of items to be completed or corrected.
16.1.2. Within ten (10) days after receipt of Contractor's notice of completion of the Work, the
Town, A/E and Contractor shall make an inspection of the Work to determine whether the Work
has been completed in accordance with the Contract Documents and to prepare a punch list. If
the Work has not been completed to the required stage, the parties shall cease the inspection and
an appropriate Change Order shall be issued deducting from the payments'-then or thereafter due
Contractor all costs associated with such premature inspection, including compensation for the
A/E's additional services, if made necessary thereby. If the payments then or thereafter due
Contractor are not sufficient to cover such amount, Contractor shall pay the difference to the
Town. If however, the Work has been completed to the required stage, a punch list shall be
prepared by A/E and/or Town and consist of those items listed by Contractor to be completed or
corrected as supplemented by those items observed and noted during the inspection. The
required number of copies of the punch list will be countersigned by the Town Project Manager
or other authorized Town representative and the A/E and will then be transmitted to Contractor.
The failure to include any items on such list shall not alter the responsibility of Contractor to
complete all Work in accordance with the Contract Documents.
16.2. Right of Early Occupancy.
16.2.1. The Town shall have the right to take possession of and to use any completed or partially
completed portions of the Work, even if the time for Completion of the Work or such portions of
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
the Work has not expired and even if the Work has not been finally accepted. Such possession
and use shall not constitute an acceptance of such portions of the Work.
16.2.2. If the Town elects to take possession of and to use any completed or partially completed
portions of the Work prior to the time for Completion of the Work or portion thereof, prior to
any such possession or use, an inspection shall be made by the local jurisdiction, the Project
Manager and Contractor. Any and all areas so occupied will be subject to a final inspection
when the Contractor complies with Article 16.1.
16.2.3. At the time of the inspection made pursuant to paragraph 16.2.2., the parties shall also
agree upon the responsibilities of the Town and Contractor for security, maintenance, heat,
utilities, property insurance premiums, and damage to the Work. If Contractor can also
satisfactorily demonstrate to the Town any actual cost for warranties for the period prior to the
date of Notice of Acceptance, the Town shall reimburse Contractor for that portion of such cost
attributable to the portion of the Work occupied by the Town for the period of time of such
occupancy. In the event Contractor believes there will be an additional cost associated with
completion of the Work while the Town occupies the Work in whole or in part, Contractor shall
advise the Town of all such cost at or before the time of the inspection and an agreement shall be
reached on the responsibilities of the Town and Contractor therefor. If Contractor fails or refuses
to furnish such cost information as required, Contractor hereby waives any and all rights to assert
any claim therefor at any time thereafter.
17. Final Completion, Acceptance, and Final Payment
17.1. Following Town's issuance of the Certificate of Completion of the Work or designated
portion thereof, the issuance or a Certificate of Occupancy from the local jurisdiction, and
Contractor's completion of the work on the punch list established pursuant to paragraph 16.1.2.
as may have been supplemented, Contractor shall forward to the Town a written notice that the
Work is ready for final inspection and acceptance, and shall also forward to the Town a final
application for Payment. Upon receipt, the Town and A/E will promptly make such inspection.
When the A/E finds the Work acceptable under the Contract Documents, A/E will issue a Final
Certificate of Completion. This Certificate will constitute a representation that, to the best of the
A /E's knowledge, information and belief, and on the basis of observations and inspections, the
Work has been completed in accordance with the terms and conditions of the Contract
Documents.
17.2. Notice of Acceptance. When the local jurisdiction has issued a Certificate of
Occupancy, A/E has issued its Final Certificate of Completion, Contractor has fully performed
all of its obligations under the Contract Documents and the same is acceptable to the Town, a
Notice of Acceptance shall be issued by the Town, which shall establish the acceptance of the
Work.
17.3. Settlement.
17.3.1. The Town shall not authorize final payment until all items on the punch list have been
completed, the A/E issues its Final Certificate of Completion, Town has received a Certificate of
Occupancy from the local jurisdiction, the Notice of Acceptance is issued, and the Notice of
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
Contractor's Final Settlement Date is published and at least 30 days have expired with no claims
filed.
17.3.2. Before the Town may advertise, Contractor shall:
1. Deliver to the A/E for review by the A/E and deliver to the Town:
a. All guaranties and warranties;
b. Confirmation that sales taxes from which the Town is exempt
have not been paid;
C. Three (3) complete bound sets of required operations and
maintenance manuals and instructions and one electronic .pdf copy as
provided in the Contract Documents and Specifications;
d. Two (2) sets of as -built drawings and one electronic .pdf copy as provided
in the Contract Documents and Specifications;
e. To the extent not already furnished, one copy of all corrected Shop
Drawings;
f. Satisfactory evidence that all payroll, material bills, and other
indebtedness connected with the Work have been paid or otherwise
satisfied;
g. A complete and final waiver and /or release of any and all lien
rights and liens from each subcontractor of all tiers, materialmen,
supplier, manufacturer and dealer for all labor, equipment and
material used or furnished by each on the Work;
h. Consent of the surety to final payment;
Any other documents required to be furnished by the Contract
Documents.
2. Demonstrate to the operating personnel of the Town the proper operation and
maintenance of all equipment installed or furnished under the Contract Documents.
17.3.3. Upon completion of the foregoing, the Contractor's Settlement shall be advertised in
accordance with Colorado law. On the date of final settlement thus advertised, and after the
CM /GC has submitted a written notice to the Town that no claims have been filed, final payment
and settlement shall be made in full.
17.3.4. If any unpaid claim for labor, materials, rental machinery, tools, supplies, or equipment is
filed before payment in full of all sums due Contractor, the Town shall withhold from Contractor
sufficient funds to insure the payment of such claim, until the same shall have been paid or
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
withdrawn, such payment or withdrawal to be evidence by filing a receipt in full or an order for
withdrawal signed by the claimant or its duly authorized agent or assignee.
17.3.5. The making of final payment, after the Date of the Notice of Contract Settlement of the
Project, shall constitute a waiver of all Claims by the Town except those arising from:
NN
1. Unsettled Claims;
2. Faulty or defective work appearing after Completion of the Work;
3. Failure of the Work to comply with the requirements of the Contract Documents;
4. Terms of any warranties or special warranties required by the Contract
Documents.
17.3.6. The acceptance of final payment, after the Date of the Notice of Contractor
Settlement of the Project, shall constitute a waiver of all Claims by Contractor except those
previously made in writing and separately identified by Contractor as unsettled in the final
Project Application for Payment.
17.3.7. All provisions of the Contract Documents including without limitation those
establishing obligations and procedures, shall remain in full force and effect notwithstanding the
making or acceptance of final payments.
18. Warranties
18.1.1. Contractor warrants to the Town that all work, materials and equipment furnished
under the Contract Documents will be of good quality, free from faults and defects and in
conformance with the Contract Documents. All work, materials or equipment not conforming to
these requirements, including substitutions not properly approved and authorized, may be
considered defective. If required by Town, Contractor shall furnish satisfactory evidence as to
the kind and quality of materials and equipment. This warranty is not limited by the provisions
of paragraph 18.1.2.
18.1.2. The CM/GC shall warrant and guarantee the Work for a period of two (2) years
from the date of the Notice of Acceptance. If, within one year after the Notice of Acceptance, or
within such longer period of time as may be prescribed by the terms of any applicable special
warranty required by the Contract Documents, if any of the Work is found to be defective or not
in accordance with the Contract Documents, Contractor shall correct it promptly after receipt of
a written notice from the Town to do so unless the Town has previously given Contractor a
written acceptance of such condition. This obligation shall survive both final payment for the
Work or designated portion thereof and termination of this Agreement. The Town shall give
such notice promptly after discovery of the condition and in any event no later than two years
after the issuance of the Notice of Acceptance.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
18.1.3. In case of work performed for which other warranties are required by the Contract
Documents, Contractor shall secure the required warranties and deliver the same to the Town in
accordance with paragraph 17.3.2. These warranties shall not in any way lessen Contractor's
responsibilities under the Contract Documents. Whenever guarantees or warranties are required
by the Contract Documents for a longer period of that one year, such longer period shall govern.
18.1.4. The establishment of the time periods noted in paragraph 18.1.2., or, such longer
period of time as may be prescribed by law or by the terms of any warranty required by the
Contract Documents, related only to the specific obligation of Contractor to correct the Work,
and has no relationship to the time within which Contractor's obligation to comply with the
Contract Documents may be sought to be enforced, nor the time within which proceedings may
be commenced to establish Contractor's liability with respect to Contractor's obligations other
than specifically to correct the Work.
18.2. Guaranty Inspections after Completion
18.2.1. The Town, and Contractor together shall make at least two (2) complete inspections of
the Work after the issuance of the Notice of Acceptance. One such inspection, the "Six -Month
Guaranty Inspection," shall be made approximately six (6) months after the issuance of the
Notice of Acceptance and another inspection, the "Eleven -Month Guaranty Inspection," shall be
made approximately eleven (11) months after the issuance of the Notice of Acceptance. The
Town shall schedule and so notify all parties concerned, including the local jurisdiction, of these
inspections.
18.2.2. Written lists and reports of these inspections shall be made by the CM /GC and forwarded
to the Town and all of the other participants within ten (10) days after the completion of each
inspection. Contractor shall immediately initiate such remedial work as may be necessary to
correct any deficiencies or defective Work shown by these reports, and shall promptly complete
all such remedial Work in a manner satisfactory to the A/E and the Town.
18.2.3. If the CM /GC fails to promptly correct all deficiencies and effects shown by any report,
the Town may do so after giving Contractor ten (10) days written notice of its intention to do so
and the Town shall be entitled to collect from Contractor and its surety all costs and expenses
incurred by it in correcting such deficiencies and defects, as well as all damages directly
resulting from such deficiencies and defects.
19. Claims for Additional Costs and Damages
19.1. Claims for Additional Cost
19.1.1. If Contractor makes a claim for an increase in the GMP, Contractor shall give the Town
its written notice of Claim thereof within fifteen (15) days or such other time period as may be
specifically set forth elsewhere in this Agreement, whichever is the lesser, after the occurrence of
the event giving rise to such claim and in all cases before proceeding to execute the Work, except
in an emergency endangering life or property, in which case, Contractor shall proceed as
necessary to prevent such threat. No such claim shall be valid unless so made. Any approved
change in the GMP resulting from such claim shall be authorized by Change Order.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
19.2. Injury to Person or Property Should either party to this Agreement suffer injury or
damage to person or property because of any act or omission of the other party or of any of the
other party's employees, agents, or others for whose acts such party is legally liable, Notice of
Claim shall be made in writing to such other party within sixty (60) days after the first
observance of such injury or damage.
19.3. Rights and Remedies
19.3.1. The duties and obligations imposed by the Contract Documents and the rights and
remedies available thereunder shall be in addition to, and not a limitation of, any duties,
obligations, rights or remedies otherwise imposed or available by law.
19.3.2. No action or failure to act by the Town shall constitute a waiver of any right or duty
afforded under the Contract Documents nor shall any such action or failure to act constitute an
approval or acquiescence in any breach thereunder, except as may be specifically agreed in
writing. Nothing herein shall waive or be deemed a waiver of the Town's governmental
privileges and immunities under federal or state law.
20. Miscellaneous
20.1. The project is under the authority of the Town of Avon Engineering Department, the
Director of which, or his/her designee, shall be the Town's liaison with Contractor with respect
to the performance of the Work.
20.2. The making, execution and delivery of this Agreement by the parties hereto have not
been induced by any prior or contemporaneous representation, statement, warranty or agreement
as to any matter other than those herein expressed. This Agreement embodies the entire
understanding and agreement of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between them relating to the subject matter hereof. This
Agreement may not be amended, including by any modification of, deletion from or addition to
the Work, except by a written document of equal formality executed by both parties hereto.
20.3. This Agreement shall be governed by and construed in accordance with the internal laws
of the State of Colorado, without reference to choice of law rules. The parties agree that venue
in any action to enforce or interpret this Agreement shall be in the District Court in the 5th
District for the State of Colorado.
20.4. The invalidity or unenforceability of any particular provision of this Agreement shall not
affect the other provisions hereof, and this Agreement shall be construed as if such invalid or
unenforceable provision was omitted.
20.5. In the event of litigation between the parties hereto regarding the interpretation of this
Agreement, of the obligations, duties or rights of the parties hereunder, or if suit otherwise is
brought to recover damages for breach of this Agreement, or an action be brought for injunction
or specific performance, then and in such event, the prevailing party shall recover all reasonable
costs incurred with regard to such litigation, including reasonable attorney's fees.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
20.6. Time is of the essence and the parties agree to notify the other if they become aware that
any condition will significantly delay performance.
20.7. Neither party will be responsible for delays or lack of performance resulting from events
beyond the reasonable control of that party. Such events include, but are not limited to, acts of
God, weather conditions, fire, third party strikes, third party lock -outs, and other labor
disruptions, material shortages, riots, and acts of war.
20.8. All tracings, plans, specifications, estimates, reports, date and miscellaneous items,
including electronic data, purported to contribute to the completeness of the Project, the Project
or the Work shall be delivered to and become the property of the Town, upon Town's request.
However, all estimating and project management information written, developed and
implemented by Contractor shall be available for review by Town, but shall not become public
information or available for use by any entity other than Contractor.
20.9. Basic survey notes, sketches, computations and other data prepared hereunder shall be
made available to the Town, upon request and become property of the Town.
20.10. The A/E, Town, Project Manager and all other representatives of the Town shall at all
times have access to the Facility to view the progress of the Work, wherever it is in preparation
and progress. The CM /GC shall provide any necessary safety equipment, and safe and
reasonable facilities for such access so that the A/E, Project Manager and Town representatives
may exercise their rights and perform their functions under the Contract Documents.
20.11. No Waiver of Rights. A waiver by any Party to this Agreement of the breach of any term
or provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either Party. The Town's approval or acceptance of, or payment for, services shall not
be construed to operate as a waiver of any rights or benefits to be provided under this
Agreement. No covenant or term of this Agreement shall be deemed to be waived by the Town
except in writing signed by the Town Council or by a person expressly authorized to sign such
waiver by resolution of the Town Council of the Town of Avon, and any written waiver of a
right shall not be construed to be a waiver of any other right or to be a continuing waiver unless
specifically stated.
20.12 No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed
to waive, limit, or otherwise modify any governmental immunity that may be available by law to
the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of
the Town and, in particular, governmental immunity afforded or available pursuant to the
Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised
Statutes.
20.13 Affirmative Action. Contractor will not discriminate against any employee or applicant
for employment because of race, color, religion, sex or national origin. Contractor will take
affirmative action to ensure applicants are employed, and employees are treated during
employment without regard to their race, color, religion, sex or national origin. Such action shall
include, but not be limited to the following: employment, upgrading, demotion or transfer;
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
20.14 Binding Effect. The Parties agree that this Agreement, by its terms, shall be binding
upon the successors, heirs, legal representatives, and assigns; provided that this Section 9.4 shall
not authorize assignment.
20.15 No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or
shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any
third party, including any agent, sub - consultant or sub - contractor of Contractor. Absolutely no
third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit
from this Agreement is an incidental and unintended beneficiary only.
20.16 Article X, Section 20 /TABOR. The Parties understand and acknowledge that the Town
is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend
to violate the terms and requirements of TABOR by the execution of this Agreement. It is
understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect
debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in
this Agreement to the contrary, all payment obligations of the Town are expressly dependent and
conditioned upon the continuing availability of funds beyond the term of the Town's current
fiscal period ending upon the next succeeding December 31. Financial obligations of the Town
payable after the current fiscal year are contingent upon funds for that purpose being
appropriated, budgeted, and otherwise made available in accordance with the rules, regulations,
and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such
funds, this Agreement shall be terminated.
20.17 Governing Law, Venue, and Enforcement. This Agreement shall be governed by and
interpreted according to the law of the State of Colorado. Venue for any action arising under this
Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of
dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties
hereby waive any and all right either may have to request a jury trial in any civil action relating
primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities
in a contract are to be construed against the drafting party shall not apply to the interpretation of
this Agreement. If there is any conflict between the language of this Agreement and any exhibit
or attachment, the language of this Agreement shall govern.
20.18 Survival of Terms and Conditions. The Parties understand and agree that all terms and
conditions of the Agreement that require continued performance, compliance, or effect beyond
the termination date of the Agreement shall survive such termination date and shall be
enforceable in the event of a failure to perform or comply.
20.19 Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or
benefits set forth in this Agreement shall not be assigned by Contractor without the express
written consent of the Town Council for Town of Avon. Any written assignment shall expressly
refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or
benefits so assigned, and shall not be effective unless approved by resolution or motion of the
Town Council for the Town of Avon. No assignment shall release the Contractor from
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
performance of any duty, obligation, or responsibility unless such release is clearly expressed in
such written document of assignment.
20.20 Inconsistencies between Provisions. In the event of an inconsistency between
provisions of the Agreement and any other provisions, incorporations by reference, or
attachments, the strictest interpretation shall apply to the Town's benefit.
20.21 Subcontractors. All terms of the agreement, its parts, attachments, or incorporations by
reference shall remain in full force for all subcontractors performing work under this Agreement.
20.22 Paragraph Captions. The captions of the paragraphs are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit or
describe the scope or intent of this Agreement.
20.23 Integration and Amendment. This Agreement represents the entire and integrated
agreement between the Town and the Contractor and supersedes all prior negotiations,
representations, or agreements, either written or oral. Any amendments to this must be in writing
and be signed by both the Town and the Contractor.
20.24 Severability. Invalidation of any of the provisions of this Agreement or any paragraph
sentence, clause, phrase, or word herein or the application thereof in any given circumstance
shall not affect the validity of any other provision of this Agreement.
20.25 Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits,
applications, or documents referenced in this Agreement shall be incorporated into this
Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this
Agreement, the provisions of this Agreement shall govern and control.
20.26 Employment of or Contracts with Illegal Aliens. Contractor shall not knowingly
employ or contract with an illegal alien to perform work under this Agreement. Contractor shall
not contract with a subcontractor that fails to certify that the subcontractor does not knowingly
employ or contract with any illegal aliens. By entering into this Agreement, Contractor certifies
as of the date of this Agreement it does not knowingly employ or contract with an illegal alien
who will perform work under the public contract for services and that the contractor will
participate in the e -verify program or department program in order to confirm the employment
eligibility of all employees who are newly hired for employment to perform work under the
public contract for services. The Contractor is prohibited from using either the e -verify program
or the department program procedures to undertake pre - employment screening of job applicants
while this Agreement is being performed. If the Contractor obtains actual knowledge that a
subcontractor performing work under this Agreement knowingly employs or contracts with an
illegal alien, the Contractor shall be required to notify the subcontractor and the Town within
three (3) days that the Contractor has actual knowledge that a subcontractor is employing or
contracting with an illegal alien. The Contractor shall terminate the subcontract if the
subcontractor does not stop employing or contracting with the illegal alien within three (3) days
of receiving the notice regarding Contractor's actual knowledge. The Contractor shall not
terminate the subcontract if, during such three days, the subcontractor provides information to
establish that the subcontractor has not knowingly employed or contracted with an illegal alien.
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
The Contractor is required to comply with any reasonable request made by the Department of
Labor and Employment made in the course of an investigation undertaken to determine
compliance with this provision and applicable state law. If the Contractor violates this provision,
the Town may terminate this Agreement, and the Contractor may be liable for actual and /or
consequential damages incurred by the Town, notwithstanding any limitation on such damages
provided by such Agreement.
20.27 Compliance with Article XXVIII of the Colorado Constitution. If and only to the
extent this Agreement constitutes a "sole source government contract" within the meaning of
Article XXVIII of the Colorado Constitution ( "Article XXVIII"), then the provisions of Sections
15 through 17 of Article XXVIII ( "Amendment 54 ") are hereby incorporated into this Agreement
and the parties hereto shall comply with the provisions of Amendment 54. In such a case, for
purposes of this Agreement, the Contractor shall constitute a "contract holder" for purposes of
Amendment 54, as shall any additional persons, officers, directors or trustees related to the
Contractor who qualify as "contract holders" pursuant to the definition set forth in Article
XXVIII. In addition, if and only to the extent this Agreement constitutes a "sole source
government contract," the Contractor hereby certifies that it is not ineligible to hold any "sole
source government contract" pursuant to Amendment 54 or any contract thereunder, and the
Contractor hereby agrees to notify the Town immediately if, at any point during the term of this
Agreement, the Contractor shall become ineligible to hold any "sole source government contract"
pursuant to Amendment 54 or any contract thereunder. If any provision or provisions of
Amendment 54 are held to be unconstitutional or otherwise invalid by a court of competent
jurisdiction in a non - appealable action, have been repealed retroactively or otherwise do not
apply to this Agreement, such provision or provisions shall no longer be incorporated into this
Agreement and the Parties shall have no obligations under such provision or provisions.
20.28 Non - Liability of Town for Indirect or Consequential Damages or Lost Profits.
Parties agree that the Town shall not be liable for indirect or consequential damages, including
lost profits that result from the Town's declaration that the Contractor is in default of the
Agreement, so long as the Town acts in good faith.
20.29 Notices. Unless otherwise specifically required by a provision of this Agreement any
notice required or permitted by this Agreement shall be in writing and shall be deemed to have
been sufficiently given for all purposes if sent by certified mail or registered mail, postage and
fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth
below or at such other address as has been previously furnished in writing, to the other Party.
Such notice shall be deemed to have been given when deposited in the United States Mail
properly addressed to the intended recipient.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
/ /Signature Page to Follow //
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Preconstruction and Construction Agreement for I -70 Regional Transit Operations Facility
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
first above written.
TOWN OF AVON, STATE OF
COLORADO, By and Through Its
TOWN COUNCIL
Rich Carroll, Mayor
CO RACTOR
By:
Signature
Title
STATE OF COLORADO )
U, ) SS.
COUNTY OF )
The foregoing instrument was acknowledged before me by
this day of 2011.
My commission expires:
WAYNRTTA IL KIRCHOFF
NOTARY PUBLIC
STATE OF COLORADO