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Section 1
The Contract Agreement
Associates which is attached
herein by this reference, is h
to its terms and conditions.
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A RESOLUTION OF THE BOARD OF
COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO,
APPROVING THE EXECUTION OF A CONTRACT BETWEEN
PITKIN COUNTY AND ISBILL ASSOCIATES
FOR THE PROVISION OF ARCHITECTURAL /ENGINEERING SERVICES
FOR A FIVE YEAR TERM AT THE ASPEN - PITKIN COUNTY AIRPORT
Resolution # 95- Z o
RECITALS
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between Pitkin County and Isbill
as Exhibit " and is incorporated
ereby approved and adopted according x
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1. Pitkin County, a Colorado home -rule County, is the owner,
sponsor, and operator of the Aspen - Pitkin County Airport (Sardy
Field) located in the vicinity of Aspen, Colorado, and has the
authority to enter into contracts at the Airport, pursuant to,
inter alia 1973 C.R.S. 30 -11 -017 (1) (aa) et sea. Title IV of the
Pitkin County Code, and Section 8.7 of the Pitkin County Home Rule
Charter; and
2. The County wishes to contract for the provision of
architectural /engineering services that will assist it in the
accomplishment of design and construction of certain capital
projects at the Aspen - Pitkin County Airport; and
3. The County has conducted a competitive selection process,
pursuant to Department of Transportation Federal Aviation
Administration Advisory Circular 5100 -14C (Architectural,
Engineering, and Planning Consultant Services for Airport Grant
Projects) and the Pitkin County Procurement Code, to select a
Proposer with whom to enter into a Contract Agreement for the
provision of architectural /engineering services; and
4. Isbill Associates of Aurora, Colorado, was selected as the
top- ranked Proposer by the selection committee, and County staff
has concluded basic contract negotiations and is recommending the
attached document for approval; and
5. On the recommendation of staff, the BOCC finds that the
approval of a Contract Agreement for the referenced services is in
the best interest of the County;
NOW THEREFORE BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO, THAT:
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The Chair (or Vice - Chair) of the Board of County Commissioners
is hereby authorized and directed to execute on behalf of the
County this Resolution and the subject document to accomplish the
transactions that have been approved as to form by the County
Manager and County Attorney.
Section 3
A true and correct copy of the Contract Agreement (Exhibit
"A") shall be kept available for public inspection during normal
business hours in the office of the Pitkin County Clerk and
Recorder Pitkin County Courthouse, 530 E. Main, Aspen, Colorado,
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and the office of the Director of Aviation, 0233 E. Airport Road,
Suite A., Aspen, CO 81611.
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INTRODUCED, READ, AND
APPROVED AT THE REGULAR MEETING ON THE
5TH DAY OF APRIL, 1995.3.
ATTEST:
BOARD OF COUNTY COMMISSIONERS
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OF PITKIN COUNTY, COLORADO
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By:
Mic el C. Ireland, Chairman
anette Jones
-S'
eputy Clerk d Recorder
DATE:
APPROVED AS TO FORM:
MANAGER APPROVAL:
Reid Haughe
J Ely
l Assis
County Attorney
County Manager.
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RECOMMENDED FOR ADOPTION:
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Scott E. Smith
Thomas C. Oken
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Director of Aviation
Director of Administrative Services
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IAI No. ASE-0100
PITKIN COUNTY ENGINEERING CONSULTANT CONTRACT
(AGREEMENT)
THIS AGREEMENT, is made and entered into as o
I i and between
Pitkin County, Colorado, a Colorado Home Rule County, ("Spons a d Isbill Associates, Inc.,
a Colorado corporation, 10190 East Montview Blvd., Aurora, Colorado 80010-2231 ("Engineer"),
wherein Sponsor and Engineer may hereinafter be referred to jointly as "the Parties. This
contract shall expire after the completion of all Contracted Services associated with the
designated Capital Improvement Projects for the year 1999, or pursuant to Section 4 of the
"Required Clause" attached hereto and made a part hercof.
WHEREAS, Sponsor, as owner, operator and sponsor of the Aspcn/Pitkin County
Airport (Sardy Field), intends to accomplish the 1995-1999 Capital Improvement Program
("Project") including but not limited to those projects listed under the Scope of Work below; and 4 .'
subject to all Pitkin County and Federal Aviation Administration ("FAA") requirements and
limitations; and
WHEREAS, the Engineer hereby agrees to complete the Project according to the terms
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set out in the Contract Documents for the compensation set out herein;
NOW, THEREFORE, Sponsor and Engineer, in consideration of the premises and of
the mutual covenants, terms, and conditions hereinaf ter set f orth, the suf f icicncy of which is
hereby acknowledged by each of the respective parties, agree as follows:
SCOPE OF WORK
1. The Engineer shall perform all Basic Services as defined below, and such Special
Services as are specifically requested in writing by Pitkin as necessary or appropriate
to the completion of all Capital Improvement Projects at the Aspen-Pitkin County
Airport designated for construction by the Airport Manager from the date of
contract through the conclusion of all projects for the year 1999. The Project is
currently expected by the Parties to include the following individual project
elements.
The scope of work contemplated under this agreement with regard to the Project is
f or engineering services f or improvements at the Aspen-Pitkin County Airport. Said
7 improvements will include, but are not limited to, the following items:
1. Rehabilitation of Taxiway "A"
2. De-ice Containment Pad
3. General Aviation Ramp Construction Reconf iguration
4. Overlay of Runway
5. Rehabilitation of General Aviation Ramp Area
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6. Rehabilitation of Air Carrier Apron
7. Expand Air Carrier Apron
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8. Installation of Taxiway Lights
9. Installation of Distance To Go Signs
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to. Construct General Aviation Apron
The Engineer's services rendered for the above described scope of work will be
according to the following schedule:
PART A
- BASIC SERVICES (PRE-APPLICATION AND DESIGN/ENGINEERING)
I.
As requested, assist the Sponsor in the preparation of the Prcapplication for Federal
Assistance from the Federal Aviation Administration (FAA). Prepare the Program
Sketch, Program Narrative, and Engineer's Estimate and assist the Sponsor with the
required Statements and Notif ications, Environmental Documentation, and the State
and Regional reviews as required;
2.
Consult/Coordinate with Airport Users, FAA, Airport Staff, City, County, and other
interested parties;
3.
Review, and revise as necessary, the airport drawings which provide the basis for the
project design;
4.
Prepare preliminary plans, specifications, contract documents, and cost estimates for
the design, to be approved by the Sponsor and the FAA;
5.
Provide acceptable Airport Layout Plan (ALP) and associated drawings, as required;
6.
Prepare and submit final plans, specifications, and contract documents for approval
by the Sponsor and the FAA prior to advertising for bids;
7.
Prepare a Design Engineer's Report, including estimates of final quantities and
construction costs. The report will be submitted with the final plans and
specifications to the Sponsor and the FAA;
8.
Assist in the preparation of the Application for Federal Assistance from the FAA
including the Exhibit "A" Prope rty Map which is normally submitted along with each
Application.
9.
Coordinate the establishment of bid proposals into sche dules to allow flexibility of
award to match the funds available;
10.
Provide complete sets of approved plans, specifications, and contr act documents for
the bidding of the project;
Arrange for and conduct Pre-bid Conference and job showing;
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12. Assist with the bid opening and processing of bid documents, and make
recommendations to the Sponsor for award of contract schedules;
13. Perform miscellaneous engineering services as requested by airport management.
PART B TOPOGRAPHIC SURVEYS/FIELD ENT INVESTIGATIONS/
TO E D ENGINEER NG)
1. SOILS AND PAVEMENT INVESTIGATIONS (FOR DESIGN)
Perform soils and /or pavement testing and investigation of proposed construction
areas as required for design.
2. TOPOGRAPHIC SURVEYS (FOR DESIGN)
Perform topographic surveys of proposed construction areas as required for design.
3. FIELD ENGINEERING
Arrange for and conduct Pre - Construction Conference. Provide full time resident
engineering coordination of the construction work with sufficient qualified field
personnel who shall be present during all construction operations, to observe that
construction is accomplished in substantial accordance with the plans and
specifications. It is expressly understood that the term "engineering coordination"
does not mean that the Engineer will assume any responsibility that usurps or
replaces the duties and authority of a Construction Superintendent or other Con -
tractor agent charged with responsibility for the construction operation. The
Engineer, in carrying out his responsibilities for engineering coordination shall
endeavor to guard the Sponsor against defects and deficiencies in the permanent
work constructed by the Contractor, but does not guarantee the performance of the
Contractor. The above disclaimers do not ine c se technical competence, expertise, x
the Engineer as agent for the Sponsor to ex
skill and engineering judgment so that the Contractor's construction products are
provided in substantial accordance with the construction contract documents. The intendent
Engineer shall issue such instructions to the Contracto to'the same onstru
as Supe extent the
as are necessary to protect the Sponsor s interest
Sponsor himself, if he were present and equipped with the requisite knowledge, skill,
competence, expertise, and engineering judgment.
r. The Engineer shall provide sufficient surveys and observe and check surveys
conducted by the Contractor in accordance with the plans and specifications.
The Engineer shall conduct materials tests required by t a
evaluate all such tests made by the Contractor in the field and in the laboratory
necessary in accordance with the plans and specifications. Copies of all test reports
will be furnished to the Sponsor and the FAA. Test results will be available on the
day tests are taken. _
The Engineer shall act as the Sponsor's agent during construction to protect the
Sponsor's interest and shall have the au thority
dance with the plans and specifications. The
construction be stopped if not in accordance
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Engineer will furnish the Sponsor and the FAA a weekly construction progress and
inspection report.
The Engineer shall prepare all addition and deletion change orders and supplemental
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agreements as required. After acceptance of the Construction Contract by the.
to the Sponsor and the FAA for approval and
Contractor, copies will be submitted
before proceeding with the work.
signature
The Engineer shall prepare periodic estimates during the construction of the project
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and shall prepare the final estimate when the work is completed. Periodic estimates
for concurrence and submittal to FAA for
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shall be submitted regularly to the Sponsor
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Federal participation payment requests.
The Engineer shall review the submitted weekly contractor's payrolls, check shop
drawings and constructions ubmittals; and prepare and maintain necessary records
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of construction progress.
When the project has been completed and is ready for final acceptance, the Engineer
the Sponsor, the
shall arrange for inspection of the finished work by the FAA,
the final payment for the work will
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Contractor, and the Engineer, following which
be considered by the Sponsor.
Upon acceptance of the project, the Engineer shall prepare the "Record Drawings,"
the
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compute final , and
including any field surveying requiredllt0rov de the Sponsor a d FAA each
Construction Engineering Report, and sha p
of reproducible "Record Drawings," and one (1) copy of the
with one (1) set
Construction Report.
On completion of the project, the Engineer shall prepare and supply the Sponsor with
the improvements constructed under th
an Airport Maintenance Program for e Project.
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PART C - CHANGE OF SCOPE
It is mutually agreed that any change in the scope of the Project as outlined in
A B, and /or delays
Article I, or the services outlined in Article II, in Parts and
the work in more than one project) by the Sponsor, resulting
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(including completion of
in extra expense to the Engineer, shall be considered beyond the normal scope of this
contract. In addition to the foregoing servic ons ofSLand,rEasement ,rRedesignnor
Descriptions
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services such as Property Surveys,
Major Changes of the concept after final plans or concepts have been approved by
because of the change in scope of
the FAA. Payment to the Engineer for such work
the anticipated change and it shall be
,
the project shall be negotiated at the time of
mutually agreed to by amending this contract.
may be directed to provide for other "Incidental 'Services" as
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identified and set forth in Section IV, Subsection of
1994. Incidental Services, Scope of foe
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Proposals of October 13,
and inclusion in future addendums under this agreement.
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subject to negotiations
that the FAA is not liable for any expenses evolving from additional
It is understood
work to the Agreement authorized by the Sponsor.
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In the event the Sponsor shall request work that in the Consultant's opinion is not
included within the original terms and conditions of this Agreement, Consultant shall
so notify the Sponsor before proceeding with such work. Thereafter, if the Sponsor
shall authorize such additional work, in writing, all Consultant work so authorized
unless otherwise agreed to by the Parties, shall be billed to the Sponsor on an hourly
basis, using the following hourly rates:
Principal
$85.00
Staff Engineer /Planner
77.30
Engineer /Planner /Construction Coordinator
54.30
Assoc. Engineer /Planner /Constr. Coordinator
36.90
Draftsman /CADD Operator
35.00
Clerical /Data Processor
33.10
Auto -CADD Work Station
25.00
Auto -TROL Work Station
35.00
* Includes labor overhead, general and administrative costs and profit.
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Auto rental and out -of -town expenses will be billed at actual costs. Out -of -town
meals will be billed at $38.00 per day.
Soils and pavement investigations, topographic surveys, and other engineering
support will be billed at actual costs.
The cost of additional reproductions and similar costs, shall be billed as follows:
Prints (Blue Line) $0.25/Sq. Ft.
Xerox Copy $0.20 /Sheet
III. The Engineer further agrees that:
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1. Inspection of Records - 49 CFR Part 18 - the Engineer shall maintain an acceptable
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cost accounting system. The Sponsor, the FAA, and the Comptroller General of the
United States shall have access to any books, documents, papers, and records of the
Engineer which are directly pertinent to the specific contract for the purposes of
i making an audit, examination, excerpts, and transcriptions. The Engineer shall
maintain all required records for three years after the Sponsor makes final payment
and all other pending matters are closed.
2. Civil Rights Act of 1964, Title VI - 49 CFR Part 21 - during the performance of this
contract, the Engineer, for itself, its assignees and successors in interest agrees as
follows:
a. Compliance with Regulations. The Engineer shall comply with the
Regulations relative to nondiscrimination in Federally assisted programs
of the Department of Transportation (hereinafter, "DOT ") Title 49, Code
of Federal Regulations, Part 21, as they may be amended from time to
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time (hereinafter referred to as the Regulations), which are herein
incorporated by reference and made a part of this contract.
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C. has not procured any product nor subcontracted for the supply of any
product for use on the project that is produced in a foreign country on
said list.
Unless the restrictions of this clause are waived by the Secretary of Transportation
in accordance with 49 CFR 30.17, no contract shall be awarded to a contractor or
subcontractor who is unable to certify to the above. If the Engineer knowingly
procures or subcontracts for the supply of any product or service of a foreign country
on said list for use on the project, the Federal Aviation Administration may direct
through the Sponsor cancellation of the contract at no cost to the Government.
Further, the Engineer agrees that, if awarded a contract resulting from this
solicitation, it will incorporate this provision for certification without modification
in each contract and in all lower tier subcontracts. The Engineer may rely on the
certification of a prospective subcontractor unless it has knowledge that the
certification is erroneous.
The Engineer shall provide immediate written notice to the Sponsor if the Engineer
learns that its certification or that of a subcontractor was erroneous when submitted
or has become erroneous by reason of changed circumstances. The subcontractor
agrees to provide written notice to the Engineer if at any time it learns that its
certification was erroneous by reason of changed circumstances.
This certification is a material representation of fact upon which reliance was placed
when making the award. If it is later determined that the Engineer or subcontractor
knowingly rendered an erroneous certification, the Federal Aviation Administration
may direct through the Sponsor cancellation of the contract or subcontract for
default at no cost to the Government.
Nothing contained in the foregoing shall be constructed to require establishment of
a system or records in order to render, in good faith, the certification required by
this provision. The knowledge and information of a contractor is not required to
exceed that which is normally possessed by a prudent person in the ordinary course
of business dealings.
This certification concerns a matter within the jurisdiction of an agency of the
United States of America and the making of a false, fictitious, or fraudulent
certification may render the maker subject to prosecution under Title 18, United
States Code, Section 1001.
7. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion - 49 CFR Part 29 - The Engineer certifies, by submission of this proposal
or acceptance of this contract, that neither it nor its principals is presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency. It further
agrees by submitting this proposal that it will include this clause without
modification in all lower tier transactions, solicitations, proposals, contracts, and
subcontracts. Where the Engineer or any lower tier participant is unable to certify
l to this statement, it shall attach an explanation to this solicitation/ proposal.
8. Rights to Inventions - 49 CFR Part IS - All rights to inventions and materials
generated under this contract are subject to regulations issued by the FAA and the
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Sponsor of the Federal grant under which this contract is executed. Information
regarding these rights is available from the FAA and the Sponsor.
IV. The Engineer and the Sponsor mutually agree that:
1. This contract shall be binding upon and insure to the benefit of the parties hereto
and their respective successors and assigns. Neither the Sponsor nor the Engineer
shall assign, sublet, or transfer its interest in this contract without the written
consent of the other;
_.
2. Termination of contract - 49 CFR Part 18.
a. This contract is for a term of five (5) years commencing April 1, 1995
and ending April 1, 1999 and may be terminated earlier as follows:
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(1.) The Sponsor may, by written notice, terminate this contract in
whole or in part at any time, either for the Sponsor's convenience
or because of failure to fulfill the contract obligations. Upon
receipt of such notice, services shall be immediately discontinued
(unless the notice directs otherwise) and all materials as may have
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been accumulated in performing this contract, whether completed
r in ro ress delivered to the Sponsor.
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(2.) If the termination is for the convenience of the Sponsor, an
equitable adjustment in the contract price shall be made, but no
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amount shall be allowed for anticipated profit on unperformed'
services.
(3.) If the termination is due to failure to fulfill the Engineer's
obligations, the Sponsor may take over the work and prosecute the
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same to completion by contract or otherwise. In such case, the
,
Engineer shall be liable to the Sponsor for any additional cost
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occasioned to the Sponsor thereby.
(4.) If, after notice of termination for failure to fulfill contract'
obligations, it is determined that the Engineer had not so failed,
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the termination shall be deemed to have been effected for the
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convenience of the Sponsor. In such event, adjustment in the
contract price shall be made as provided in paragraph 2 of this
clause.
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(5.) The rights and remedies of the Sponsor provided in this clause are
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in addition to any other rights and remedies provided by law or
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under this contract.
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b: For cause by either party upon seven (7) days prior written notice. Cause
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means failure of either party to substantially perform in accordance with
this Contract through no fault of the other party and includes but is not
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limited to the failure to meet specified time limits by either party or:.�
inferior or uncompleted work by Engineer.
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C. Without cause or penalty by the Sponsor at any time upon ten (10) days
prior written notice to Engineer. Termination by Sponsor shall not give
rise to any claim for damages or other claim or remedy by Engineer
either legal, equitable or administrative, except for services performed
by Engineer prior to the date of termination.
3. Ownership of Project Documents - The original plans and specifications shall remain
the property of the Engineer; however, the Sponsor will be provided one (1) set of
specifications and reproducible plans whether or not the project is
executed. With the Engineer's prior consent, the Sponsor may use those plans in any
manner he wishes, provided the Sponsor agrees to save and hold the Engineer
harmless for any liability resulting from such reuse, unless the Engineer's services are
engaged in the repeated project or projects. The Sponsor may obtain other project
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documents including estimates, survey notes and daily construction reports upon
request.
4.
Breach of Contract Terms, Sanctions - 49 CFR Part 18 - Any violation or breach of
the terms of this contract on the part of any or all of the Engineer's subcontractors
may also result in the suspension or termination of this contract or such other action
which may be necessary to enforce the rights of the parties of this agreement.
V.
The Sponsor agrees that:
1.
The Sponsor shall make available to the Engineer all technical data that is in the
Sponsor's possession including maps, surveys, property descriptions, borings and other
information required by the Engineer and relating to his work.
j 2.
The Sponsor agrees to cooperate with the Engineer in the approval of all plans and
specifications, or should they disapprove of any part of said plans and specifications,
shall make a timely decision in order that no undue expense will be caused the
Engineer because of lack of decisions. If the Engineer is caused to incur other
expenses such as extra drafting, due to changes ordered by the Sponsor after
completion and approval of the plans and specifications, the Engineer shall be
equitably paid for such extra expenses and services involved.
3.
The Sponsor shall pay publishing costs for advertisements of notices, public hearings,
requests for bids, and other similar items; shall pay for all permits and licenses that
may be required by local, state or federal authorities; and shall secure the necessary
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land, easements, and rights -of -way required for the project.
VI.
Fees for services listed under Article [I will be negotiated at a later date when the
project scope is defined. These fees will be formalized by means of an amendment
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to this contract.
VII.
The Engineer agrees to perform said services and work to carry out the provisions of
this contract in a good and workmanlike manner. _
VIII.
Liability
The Engineer agrees to comply with requirements of Section 7. Indemnity /Insurance
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of Attachment A (Required Clauses)
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IX.
Opinion of Construction Costs
An opinion of construction cost prepared by the Engineer represents his judgment as
design professional and is supplied for Sponsor's guidance. Since the Engineer has
a
control over the cost of labor and material, or over competitive bidding or market
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the Engineer does not guarantee the accuracy of its opinion as compared
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conditions,
to contractor bids or actual cost to the Sponsor.
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The following documents are agreed to constitute the Contract Documents and are
incorporated herein by this reference. In the event that any provision of one
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Contract Document conflicts with the provision of another, the provision in the
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Contract Document listed first below shall govern, except as otherwise specifically
stated:
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a. Agreement (this document), Addenda and all annual amendments
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establishing "Scope -of- Work ", payment and payment schedules, if
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any;,
b. Pitkin County Required Clauses (Attachment A);
C. Notice to Proceed.
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IN WANESSffHEREOF, the parties h o have af their signatures this day
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PITKIN COUNTY, COLORADO
ISBILL ASS CI INC.
(SPONSOR)
(ENGINEE
B
By:
vim Chairman
Title
T.
ATTEST:
APPROVED AS TO FORM:
De Coun ty Cler
RECOMMENDED FOR APPROVAL: APPROVED AS TO BUDGET:
Reid Haughe?, County Manager
Thomas Carl Oken
Administrative Services Director
Scott Smith, Director of Aviation
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ATTACHMENT A
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PITKIN COUNTY CONSTRUCTION CONTRACT
( REQUIRED CLAUSES)
For the Project Entitled: 1995 -1999 Capital Improvement Program Consultant Selection.
Date of Consultant Selection: December 13. 1994.
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The Consultant shall be subject to the following provisions:
1,
COMPLIANCE WITH PROCUREMENT CODE AND APPLICABLE STATE CON -
TRACTING LAW
A.
The Consultant acknowledges that this Agreement is entered into subject to the
requirements of the Pitkin County Procurement Code," (Section 8.5 of the Pitkin
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Rule Charter Resolution No. 82 -37, April 12, 1982). As such, the
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Consultant agrees to comply with all requirements of said Procurement Code, and
such requirements are incorporated herein by this reference. The Consultant also
acknowledges that this Agreement is subject to applicable state contracting law
including, without limitation, C.R.S. Sections 38 -26 -101 et se 24 -92 -101 et seg.,
43 -2 -101 et se ., 43 -2 -201 et sea.
B.
The Consultant shall immediately notify the County Manager in writing of any
violation of said Code or statutes by the County's employees or agents, which
violation(s) is known or should have been known by him, and failure to so notify
the County of any violation(s) within five (5) days of knowledge of such violations
shall be considered a breach of this Agreement. Further, such failure to notify the
County of violation of the Procurement Code or statutes within five (5) days of
knowledge shall be deemed as a waiver of any action or defense that the Consultant
may have against the County by reason of such violation of the Procurement Code
or statutes.
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WARRANTIES AGAINST CONTINGENT FEES GRATUITIES KICKBACKS
AND CONFLICT OF INTEREST
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A.
Covenant Against Contingent Fees. The Consultant warrants that no person or
selling agency has been employed or retained to solicit or secure this Contract upon
an agreement or understanding for a commission, percentage, brokerage, or
fide employees or bona fide established commercial
contingent fee, excepting bona
or selling agencies maintained by the Consultant for the purpose of securing
business.
B.
Gratuities Prohibited. The Consultant agrees not to give any employee or former -
employee of Pitkin County a gratuity or any offer of employment in connection
with any decision, approval, disapproval, recommendation, preparation of any part
of a program requirement or a purchase request, influencing the content of any
specification or procurement standard, rendering of advice, investigation, auditing,
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or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining toY'.
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this Contract or Subcontract, or to any solicitation or proposal therefor.
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C.
Gratuity means a payment, loan, subscription, advance deposit of money, services,
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or anything of more than nominal value, present or promised, unless consideration
of substantially equal or greater value is received.
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Kickbacks Prohibited. It shall be a breach of Contract for any payment, gratuity,
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or offer of employment to be made by or on behalf of a subcontractor under a
contract to the prime contractor or higher tier subcontractor or any person associ-
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ated therewith, as an inducement for the award of a subcontract or order. The
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Consultant is prohibited from inducing, by any means, any person employed under
this Contract to give up any part of the compensation to which he /she is otherwise
entitled. The Consultant shall comply with all applicable local, state and federal
"anti- kickback" statutes or regulations.''
E.
Prohibited Conflict of Interest. No official, officer, employee or representative of
the County during the term of this Contract or one (1) year thereafter shall have
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any interest, direct or indirect, in this Contract or the proceeds thereof. (Additional
on present and former employees of County are found in Article. 7 of
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restrictions
the Procurement Code).
F.
Sub - Contract Clause. The prohibitions against contingent fees, gratuities, kickbacks
and conflict of interest prescribed in this Contract shall be made a condition of con -
set forth in every sub - contract and solicitation therefor.
spicuously
G.
Conspicuously means written in such special or distinctive format, print, or manner
that a reasonable person against whom it is to operate ought to have noticed it.:
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H.
Remedies. In addition to other remedies it may have for breach of the prohibitions
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against contingent fees, gratuities, kickbacks and conflict of interest, the County
shall have the right to:
(1) Terminate this Contract without liability by the County;
(2) Debar or suspend the offending parties from being a contractor or sub-
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contractor under County contracts;
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(3) Deduct from the contract price or consideration, or otherwise recover, the
value of anything transferred or received by the Consultant; and
(4) Recover such value from the other offending parties.
3,
E 0 UAL EMPLOYMENT OPPORTUNITY AND
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DISA DVANTAGED /MINORITY /WOMEN BUSIN ENTERPRISES
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(DBE /MBE /WBE)
A.
In connection with the execution and administration of this Contract, and any
subcontracts, the Consultant shall not discriminate against any employee or appli-
cant for employment because of race, religion, color, sex, national origin, age,
1,
handicap or status as a veteran. Affirmative action to prevent such discrimination
shall include, without limitation, employment, upgrading, demotion or termination,
forms of com ensation, and selection for training, including
rates of pay, or other p
apprenticeship.
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B. In connection with the performance of this Contract, the Consultant will cooperate
with the County in meeting the County's commitments and goals with regard to the
maximum utilization of disadvantaged, minority and women business enterprises
and will use its best efforts to ensure that such business enterprises shall have the
maximum practicable opportunity to compete for employment and /or subcontract
work, if any, under this Contract.
C. The Consultant will furnish all necessary information and reports and will permit
access to its books, records, and accounts by Pitkin County for purpose of
investigation to ascertain compliance with the nondiscrimination /affirmative
action provisions of any resultant contract.
D. Employment Data and Affirmative Action Plan. If requested, the Consultant agrees
to submit on an Employment Data Form to be provided by the County, the data
showing the utilization of disadvantaged persons, minorities and women by job
category within its organization. Where the Consultant has fifty (50) or more
employees or it is participating in contracts with the County which exceed Fifty--
Thousand ($50,000.00) Dollars, an Affirmative Action Plan must be submitted to the
County when requested by the County Attorney's Office within ten (10) days after
selection.
E. Noncompliance. In the event of the Consultant's noncompliance with the
nondiscrimination /affirmative action provisions of any resultant contract, Pitkin
County shall impose such contract sanctions as it may determine to be appropriate,
including, but not limited to:
(1) Withholding of payments under the Contract until the Consultant
complies, and /or
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(2) Cancellation, termination, or suspension of the Contract, in whole or
in part.
4. TERMINATION FOR DEFAULT OR FOR CONVENIENCE OF COUNTY
A. The performance of work under the Contract may be terminated by the County:
(1) Whenever the Consultant shall default in performance of this Contract in
accordance with its terms, and fails to cure or show cause why such failure to
perform should be excused within ten (10) days (or longer as the County may
allow or shorter, but not less than three (3) days, for failure to provide proof
of insurance or maintenance of any dangerous condition) after hand - delivery
or mailing to the Consultant of a notice specifying the default. If mailed, said
notice shall be sent by certified mail, return receipt requested, to the address
specified herein for the Consultant.
The Consultant shall not be in default by reasons of any failure in
performance of this Contract in accordance with its terms if such failure
arises out of causes beyond the control and without the fault or negligence of
the Consultant. Such causes may include, but are not restricted to, acts of
God, natural disasters, strikes, or freight embargoes, but in every case the
failure to perform must be beyond the control and without the fault or
negligence of the Consultant. Upon request of the Consultant, the County
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shall ascertain the facts and failure, and, if the County shall determine that
any failure to perform constituted a valid commercial excuse, the
performance shall be revised accordingly and notice of default withdrawn; or
(2) Whenever for any reason and in its sole discretion the County shall determine
that such termination is in its best interest and convenient.
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B. Notice of Termination. In the event of termination for the convenience of the
County, the County shall deliver to the Consultant a written notice of termination,
specifying the reasons therefor, and the effective date of such termination. The
effective date shall not be earlier than the date of hand - delivery or the date of
mailing of the notice, plus three (3) business days. The notice of termination shall
be sent regular first -class mail to the address of the Consultant herein provided.
C. Termination Procedure. After the effective date of the notice of termination for
default or for the convenience of the County, unless otherwise directed by the
County, the Consultant shall:
(1) Stop work under the Contract on the date specified in the notice of F,
termination.
(2) Place no further orders for materials, services or facilities.
(3) Terminate all orders and subcontractors to the extent that they relate to the
performance of work terminated by the notice of termination.
(4) With the approval or ratification of the County, settle all outstanding
liabilities and all claims arising out of such termination on orders or
subcontracts, the cost of which would be compensable or reimbursable in
whole or in part in accordance with this Contract.
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D. Termination Payment. After the effective date of a notice of termination for the
convenience of the County, the Consultant shall submit to the County his termina-
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tion claim in the form of a final invoice in accordance with the provisions in
"Method of Payment," including costs incurred to the date of termination, and costs
incurred because of termination, which termination costs shall not exceed 10% of
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the total amount of proposal; provided, however, that in the event of default by the
Consultant, no extra costs incurred because of termination shall be paid to the
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Consultant and any costs paid shall not be a waiver of any claim, counterclaim or
set -off by the County against the Consultant on account of any default. Such claim
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must be submitted promptly, but in no event later than thirty (30) days from the
effective date of termination, unless one or more extensions are granted in writing
by the County. Upon the Consultant's failure to submit a claim in the time allowed,
the County may review the information available to it and determine the amount
due the Consultant, if any, and pay the Consultant the amount as determined.
E. Termination Settlement. Subject to Paragraph 4.D., the Consultant and County may
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negotiate the whole or any part of the amount or amounts to be paid, upon
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termination for default or for the convenience of the County.
F. Remedies. The Consultant shall have the right of appeal from any determination
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made by the County under "Termination for Default or for Convenience of
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County;" except that if the Consultant has failed to submit his claim within the time
provided in Paragraph 4.D., above, and has failed to properly request extension, he
shall have no such right of appeal. In any case where the County has made a
determination of the amount due under Paragraphs 4.D. or 4.E., above, the County
shall pay the Consultant: (1) the amount the County has determined if there is no
right to appeal or if no timely appeal has been taken, or (2) the amount finally
determined on such appeal if an appeal has been taken.
G. Method of Appeal. If the Consultant disagrees with the County's determination
under Paragraphs 4.D. or 4.E., he can appeal this decision in writing to the County.
Such appeal must be made within twenty (20) days of receipt in writing of the
County's determination. The County shall have twenty (20) days in which to
respond in writing to the appeal. The County's response shall be final and
conclusive unless within thirty (30) days from the date of receipt of such response
the Consultant submits the dispute to a court of competent jurisdiction.
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i 5. METHOD OF PAYMENT
A. Once each four (4) weeks, or whenever convenient to both the County and the
Consultant or as otherwise provided in the contract documents, the Consultant shall
submit to the County an Application For Payment for percentage of work
completed.
B. After receipt and approval of charges, the County shall make payment thereon
within thirty (30) days of receipt of said charges to the Consultant.
C. Prior to a final payment under this Contract, the Consultant shall execute and
deliver:
(1) An assignment to the County of refunds, rebates, credits or other amounts,
including the interest thereon, properly allocable to cost for which the
Consultant has been reimbursed by the County under this Contract;
(2) A release or waiver discharging the County for all liabilities, obligations and
claims arising out of or under this Contract on behalf of the Consultant (and
his successors and assigns) and of all subcontractors and suppliers, and an
indemnity protecting the County against any such liabilities, obligations and
claims;
(3) An assignment to the County for all warranties for products and operations
provided under this Agreement; and
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(4) A warranty from the Consultant in a form agreeable to the parties, but with a
warranty period of not less than one (1) year.
(5) Notice of Advertisement, pursuant to C.R.S. Section 38 -26 -107, if applicable,
or other applicable regulation or contract provision.
6. INTEGRATION AND MODIFICATION
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` A. This Contract constitutes the full and complete agreement of the parties and
supersedes or incorporates any prior written and oral agreements of the parties. In
addition, the Consultant understands that no County official or employee, other
than the Board of County Commissioners acting as a body at a Board meeting, has
authority to enter into a contract or to modify the terms of this contract on behalf
of the County. Any such contract or modification to this contract must be in
ti writing and be executed by the parties hereto.
B. With respect to change orders under the Contract, the County and the Consultant
shall process and approve /disapprove requests for change orders as otherwise
provided in this Contract, subject to the requirements of the Procurement Code and
the Finance Office.
7. INDEMNITY /INSURANCE
A. The Consultant (including, by definition here and hereinafter, its officials,
employees, representatives, subcontractors and suppliers), shall and hereby does
release, discharge, indemnify and hold harmless the County of Pitkin and its
i officials, employees, and representatives from and against liability for any claim,
demand, loss, damages, judgment, expenses, costs (including costs of investigation
and defense), fees (including reasonable attorney and expert witness fees) or
compensation in any form or kind whatsoever for any bodily injury, death, personal
injury or property damage arising out of or in connection with any negligent act,
intentional act, error or omission by the Consultant, and for any consequential
liability which accrues against the County on account of the Consultant's negligent
acts, intentional act, errors or omissions; provided, however, that such indemnity
shall not be construed as an indemnity for bodily injury or property damage arising
from the negligence of the County or its employees, or other third parties.
B. To fund this indemnity, in whole or in part, the Consultant shall secure and main-
tain for the term of its contractual relationship with the County such insurance
policies, from companies licensed in the State of Colorado, as will protect itself,
(with County named as additionally insured except for workers' compensation and
professional liability) from claims for bodily injuries, death, personal injury or
property damage, which may arise out of or result from the Consultant's negligent
acts, errors or omissions. The following insurance coverage, at or above the limits
indicated and including such endorsements as are indicated by an "X ", are required:
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(1) Statutory Workman's Compensation Colorado k
statutory minimums
amage
$ 1,000,000
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Coverage)
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C.
D.
(4) Special Coverages (check as appropriate):
X Professional Errors and Omissions amount of contract
To provide evidence of the required insurance coverages, copies of Certificates of
Insurance in a form acceptable to the County shall be filed with the County
(through the Project Manager) no later than ten (10) calendar days prior to com-
mencement of operations affecting the County. Failure to file or maintain accept-
able Certificates of Insurance with the County is agreed to be a material breach of
any contract and grounds for rescission or termination. These Certificates of
Insurance shall contain a provision that coverage afforded under the policies will
not be canceled unless at least thirty (30) calendar days prior written notice by mail,
has been sent to the County (through the Project Manager).
Simultaneously with the Certificates of Insurance, the Consultant shall file with the
County (and promptly update, as necessary) a certified statement as to claims
pending against the required coverages, reserves established on account of such
claims, defense costs expended and amounts remaining on policy limits.
In addition, these Certificates of Insurance shall contain the following clauses:
(1) The clause "other insurance provisions," in a policy in which the County of
Pitkin holds a Certificate, shall not apply to the County of Pitkin.
(2) The insurance companies issuing the policy or policies hereunder shall have no
recourse against the County of Pitkin for payment of any premiums or for
assessments under any form of policy.
(3) Any and all deductibles in the above - described insurance policies shall be
assumed by and be for the amount of, and at the sole expense of the
Consultant.
(4) Location of operations shall be: "all operations and locations at which work
for the referenced Project is being done."
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Products /Completed Operations
x Independent Contractors
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and Subcontractors, if such
are used in the project
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Pollution Liability
x Personal Injury, with Employment
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Exclusion Deleted
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(3) Commercial Motor Vehicle Liability Insurance:
Bodily Injury /Property Damage
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Combined Single Limit: _S 1.000.000
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Endorsements (check as appropriate):
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x Any Auto
x All Owned Autos
x Hired Autos
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x Non -Owned Autos
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Garage Liability
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D.
(4) Special Coverages (check as appropriate):
X Professional Errors and Omissions amount of contract
To provide evidence of the required insurance coverages, copies of Certificates of
Insurance in a form acceptable to the County shall be filed with the County
(through the Project Manager) no later than ten (10) calendar days prior to com-
mencement of operations affecting the County. Failure to file or maintain accept-
able Certificates of Insurance with the County is agreed to be a material breach of
any contract and grounds for rescission or termination. These Certificates of
Insurance shall contain a provision that coverage afforded under the policies will
not be canceled unless at least thirty (30) calendar days prior written notice by mail,
has been sent to the County (through the Project Manager).
Simultaneously with the Certificates of Insurance, the Consultant shall file with the
County (and promptly update, as necessary) a certified statement as to claims
pending against the required coverages, reserves established on account of such
claims, defense costs expended and amounts remaining on policy limits.
In addition, these Certificates of Insurance shall contain the following clauses:
(1) The clause "other insurance provisions," in a policy in which the County of
Pitkin holds a Certificate, shall not apply to the County of Pitkin.
(2) The insurance companies issuing the policy or policies hereunder shall have no
recourse against the County of Pitkin for payment of any premiums or for
assessments under any form of policy.
(3) Any and all deductibles in the above - described insurance policies shall be
assumed by and be for the amount of, and at the sole expense of the
Consultant.
(4) Location of operations shall be: "all operations and locations at which work
for the referenced Project is being done."
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E. Certificates of Insurance for all renewal policies shall be delivered to the Project
Manager at least fifteen (15) days prior to a policy's expiration date except for any
policy expiring on the expiration date of this Agreement or thereafter.
8. E XEMPTIONS AND PREFERENCES
A. All purchases of construction or building materials for any Contract shall not
include Federal Excise Taxes or Colorado State or local sales or use taxes. Pitkin
County is exempt from such taxes under registration numbers 98 -02624 and 84-
78000 -5K.
B. Pursuant to state statute and to the extent permitted by law, Colorado labor shall be
employed to perform the work to the extent of not less than eight percent (80 %) of
each type or class of labor employed on such project.
C. Preference is given, to the extent permitted by law, to: materials, supplies and
provisions produced, manufactured or grown in Colorado, quality being at least
equal to materials, supplies and provisions from outside the state; and to local
(Roaring Fork Valley) services and labor of quality at least equal to non -local
services and labor.
9. RECORDS
The Consultant shall maintain comprehensive, complete and accurate books, records, and
documents concerning its performance relating to this Project for a period of three (3) years
after final payment on the Project and the County shall have the right within the three -year
period to inspect and audit these books, records and documents, upon demand, in a
reasonable manner and at reasonable times, for the purpose of determining, by accepted
accounting and auditing standards, compliance with all provisions of the Contract and
applicable law.
10. ANNUAL APPROPRIATIONS
I If the contract awarded as a result of a bid extends beyond the calendar year, nothing herein
shall be construed as an obligation by the County beyond any amounts that may be, from
time to time, appropriated by the County on an annual basis. It is understood that payment
under any contract is conditional upon annual appropriation of funds by said governing
body and that before providing services, the Consultant, if he so requests, will be advised as
to the status of funds appropriated for services or materials and shall not be obligated to
provide services or materials for which funds have not been appropriated.
11. SUCCESSORS AND ASSIGNS
This Agreement and all of the covenants hereof shall inure to the benefit of and be binding
upon the County and the Consultant respectively and their agents, representatives,
employees, successors, assigns and legal representatives. Neither the County nor the
Consultant shall have the right to assign or transfer its interest or obligations hereunder
without the written consent of the other party, which consent shall not be unreasonably _
withheld.
12. THIRD PARTIES
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This Agreement' does not and shall not be deemed or construed to confer upon or grant to . .
any third party or parties, except to parties to whom Consultant or County may assign this
Agreement in accordance with the specific written permission, any rights to claim damages
or to bring any suit, action or other proceeding against either the County or Consultant
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained. a
13. AGREEMENT MADE IN COLORADO ' FK
The parties agree that this Agreement was made in accordance with the laws of the State of
Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin '�" f
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County, Colorado.
14. ATTORNEY'S FEES
In the event that le al action is necessary to enforce any of the provisions of this Agreement, Rr'sQ
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the prevailing party shall be entitled to its costs and reasonable attorney's fees.
15. NOTICES
Unless otherwise provided in the Contract Documents, all notices under the Agreement shall
be sent certified mail, return receipt requested, and shall be effective upon receipt or three
(3) business days after mailing, whichever is first.
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