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Home My WebLink About20073017.tiff _,-nt Document A101TN - 1997 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a STIPULATED SUM AGREEMENT made as of the Seventeenth day of September in the year of Two Thousand Seven ADDITIONS AND DELETIONS: (In words, indicate day, month and year) The author of this document has added information needed for its BETWEEN the Owner: completion.The author may also (Name, address and other information) have revised the text of the original AIA standard form.An Additions and Weld County Government Deletions Report that notes added 915 10th Street information as well as revisions to Greeley,CO the standard form text is available Telephone Number: 970.336.7225 from the author and should be reviewed.A vertical line in the left margin of this document indicates where the author has added and the Contractor: necessary information and where (Name, address and other information) the author has added to or deleted from the original AIA text. Growling Bear CO(INC),General Corporation 2330 4th Avenue This document has important legal Greeley,CO 80631 consequences. Consultation with an Telephone Number:970-353-6964 attorney is encouraged with respect Fax Number: 970-353-6974 to its completion or modification. AIA Document A201-1997,General The Project is: Conditions of the Contract for (Name and location) Construction,is adopted in this document by reference. Do not use Weld County South Parking Lot with other general conditions unless this document is modified. This document has been approved The Architect is: and endorsed by The Associated (Name, address and other information) General Contractors of America. Drexel Barrell&CO 6513 W.4th Street Greeley,CO 80634 Telephone Number:970.351.0645 Fax Number: 970.351.0665 The Owner and Contractor agree as follows. 19,C ea,79 Cc11chtt ,>o1fi1ckt CO '. 2007-3017 O9131+1 , O F LCIO-,.1-0_Db) /6-/1-07 AIA Document A101 TM-1997.Copyright ©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AlAe Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 1 reproduction or distribution of this Ale Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:23:00 on 09/14/2007 under Order No.1000291688_1 which expires on 3/20/2008,and is not for resale. User Notes: (2755259219) ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement,Conditions of the Contract(General, Supplementary and other Conditions),Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement;these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations,representations or agreements,either written or oral.An enumeration of the Contract Documents, other than Modifications,appears in Article 8. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents,except to the extent specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION §3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.) The commencement date will be fixed in a notice to proceed. If,prior to the commencement of the Work,the Owner requires time to file mortgages,mechanic's liens and other security interests,the Owner's time requirement shall be as follows: §3.2 The Contract Time shall be measured from the date of commencement. §3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than days from the date of commencement,or as follows: (Insert number of calendar days.Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Contract Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.) I Per Construction Schedule Portion of Work Substantial Completion Date ,subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any,for liquidated damages relating to failure to complete on time or for bonus payments for early completion of the Work.) ARTICLE 4 CONTRACT SUM §4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract.The Contract Sum shall be Five Hundred Twenty-three Thousand Two Hundred Eleven Dollars and Zero Cents ($523,211.00),subject to additions and deductions as provided in the Contract Documents. §4.2 The Contract Sum is based upon the following alternates,if any, which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement,attach a schedule of such other alternates showing the amount for each and the date when that amount expires) AIA Document A101Trr—1997.Copyright ©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AlAe Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AlA® Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:23:00 on 09/14/2007 under Order No.1000291688_1 which expires on 3/20/2008,and is not for resale. User Notes: (2755259219) Includes Proposal from Drexel Barren attached §4.3 Unit prices, if any,are as follows: Description Units Price($0.00) ARTICLE 5 PAYMENTS §5.1 PROGRESS PAYMENTS §5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect,the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. §5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month,or as follows: §5.1.3 Provided that an Application for Payment is received by the Architect not later than the Twenty-fifth day of a month,the Owner shall make payment to the Contractor not later than the Fifteenth day of the following month. If an Application for Payment is received by the Architect after the application date fixed above,payment shall be made by the Owner not later than Fifteen ( 15 )days after the Architect receives the Application for Payment. §5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents.The schedule of values shall allocate the entire Contract Sum among the various portions of the Work.The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule,unless objected to by the Architect,shall be used as a basis for reviewing the Contractor's Applications for Payment. §5.1.5 Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. §5.1.6 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values,less retainage of Ten percent 10.00%).Pending final determination of cost to the Owner of changes in the Work,amounts not in dispute shall be included as provided in Section 7.3.8 of AIA Document A201-1997; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction(or,if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of Ten percent ( 10.00%); .3 Subtract the aggregate of previous payments made by the Owner;and .4 Subtract amounts,if any,for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201-1997. §5.1.7 The progress payment amount determined in accordance with Section 5.1.6 shall be further modified under the following circumstances: .1 Add,upon Substantial Completion of the Work,a sum sufficient to increase the total payments to the full amount of the Contract Sum,less such amounts as the Architect shall determine for incomplete Work,retainage applicable to such work and unsettled claims;and AIA Document A101Ta—1997.Copyright ©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA® Document is protected by U.S.Copyright law and International Treaties.Unauthorized reproduction or distribution of this AlA® Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:23:00 on 09/14/2007 under Order No.1000291688_1 which expires on 3/20/2008,and is not for resale. User Notes: (2755259219) (Section 9.8.5 of AlA Document A201-1997 requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) .2 Add,if final completion of the Work is thereafter materially delayed through no fault of the Contractor,any additional amounts payable in accordance with Section 9.10.3 of AIA Document A201-1997. §5.1.8 Reduction or limitation of retainage,if any, shall be as follows: (If it is intended,prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.1.6.1 and 5.1.6.2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation.) Reduced to 5%after 50%of work completed §5.1.9 Except with the Owner's prior approval,the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. §5.2 FINAL PAYMENT §5.2.1 Final payment,constituting the entire unpaid balance of the Contract Sum,shall be made by the Owner to the Contractor when: .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201-1997,and to satisfy other requirements, if any, which extend beyond final payment;and .2 a final Certificate for Payment has been issued by the Architect. §5.2.2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment,or as follows: ARTICLE 6 TERMINATION OR SUSPENSION §6.1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of MA Document A201-1997. §6.2 The Work may be suspended by the Owner as provided in Article 14 of MA Document A201-1997. ARTICLE 7 MISCELLANEOUS PROVISIONS §7.1 Where reference is made in this Agreement to a provision of MA Document A201-1997 or another Contract Document,the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. §7.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below,or in the absence thereof,at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) I Ten percent( 10.00%)per annum (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) §7.3 The Owner's representative is: (Name, address and other information) AIA Document A101T+'-1997.Copyright ©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA® Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:23:00 on 09/14/2007 under Order No.1000291688_1 which expires on 3/20/2008,and is not for resale. User Notes: (2755259219) Pat Persichino 915 10th Street Greeley,CO §7.4 The Contractor's representative is: (Name, address and other information) Curtis Naibauer 2330 4th Avenue Greeley,CO 80631 §7.5 Neither the Owner's nor the Contractor's representative shall be changed without ten days written notice to the other party. §7.6 Other provisions: ARTICLE 8 ENUMERATION OF CONTRACT DOCUMENTS §8.1 The Contract Documents,except for Modifications issued after execution of this Agreement,are enumerated as follows: §8.1.1 The Agreement is this executed 1997 edition of the Standard Form of Agreement Between Owner and Contractor,AIA Document A101-1997. §8.1.2 The General Conditions are the 1997 edition of the General Conditions of the Contract for Construction,MA Document A201-1997. §8.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated ,and are as follows Document Title Pages §8.1.4 The Specifications are those contained in the Project Manual dated as in Section 8.1.3,and are as follows: (Either list the Specifications here or refer to an exhibit attached to this Agreement.) Title of Specifications exhibit: (Rows deleted) §8.1.5 The Drawings are as follows,and are dated unless a different date is shown below: (Either list the Drawings here or refer to an exhibit attached to this Agreement) Title of Drawings exhibit: Weld County South Parking Lot as prepared by Drexel Barren Co (Rows deleted) §8.1.6 The Addenda,if any,are as follows: Number Date Pages 1 8/30/2007 2 9/5/2007 Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 8. AIA Document A101 TM-1997.Copyright ©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This Alt,®Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AlA® Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AlA software at 16:23:00 on 09/14/2007 under Order No.1 0 0 0291 688_1 which expires on 3/20/2008,and is not for resale. User Notes: (2755259219) §8.1.7 Other documents,if any,forming part of the Contract Documents are as follows: (List here any additional documents that are intended to form part of the Contract Documents.AIA Document A201- 1997 provides that bidding requirements such as advertisement or invitation to bid, Instructions to Bidders, sample forms and the Contractor's bid are not part of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) Proposal from Drexel Barrel]for construction observation. This Agreement is entered into as of the day and year first written above and is executed in at least three original copies,of which one is to be delivered to the Contractor,one to the Architect for se ' the administration of the Contr nd the remainder to the caner. OWN (Signature) C NTRACTOR(Signature) . Lrnn Kevin Shironaka (Printed name and t�l� ' (Printed name and title) . gniryitsstonees - • AIA Document A101TM-1997.Copyright O1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA® Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AlA® Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:23:00 on 09/14/2007 under Order No.1000291688_1 which expires on 3/20/2008,and is not for resale. User Notes: (2755259219) 09/14/07 10:46 FAX 970 351 0665 DREXEL BARRELL a 002 Drexel, Barrell&co. —v— MP �� September 14, 2007 Growling Bear Co. (Inc.) Engineers/Surveyors Attn: Gary Shironaka 2330 4th Avenue Greeley, CO 80138 Boulder Colorado Springs Re: Weld County South Parking Lot, Greeley, CO Greeley Construction Observation Steamboat Springs Grand Junction Gary: 6513 W. 4th Street Drexel Barrel' is very pleased to present you with this proposal and Greeley,Colorado 80634 estimated fee, at your request, for Construction Observation Services for the proposed Weld County South Parking Lot located in Greeley, Colorado. 970-351-0645 970-351-0665 Fax Project Understanding This project shall consist of a new parking lot at the corner of 11th Avenue and A Street in Greeley, Colorado. Construction will include earthwork, paving, storm water piping, Curb and Gutter, Traffic Control, Pavement Markings, Materials Testing and other miscellaneous items. Scope of Services and Fee Schedule Construction Observation $9,000 1. Conduct periodic observation of construction throughout the length of the project. Observation intervals will vary at the discretion of the engineer. In general, relatively short visits will coincide with routine construction, and full time observation will be performed during critical activities such as during concrete pours and pipeline installations. 2. Participate in informal meetings with the contractor to address concerns and report all comments or questions to the engineer. 3. Prepare a daily journal of construction progress. Copies of the journal will be supplied to be included in the as-built submittal to the City of Greeley and Weld County.the Contractor Town at the conclusion of the project. Possible Additional Services The following services are not included in this proposal but could be provided by Drexel, Barrell & Co. upon request: • Additional Public or Team meetings beyond those stated above • Construction Administration services • As-built surveys and certifications 09/14/07 10:46 FAX 970 351 0665 DREXEL BARRELL to 003 Growling Bear,Mr.Gary Shironaka Page 2 September 14, 2007 Assumptions 1. This proposal assumes one phase of construction. 2. Access to the site will be provided for construction observation. 3. Although we consider ourselves experts at the tasks we have offered to provide, we cannot control the actions of review agencies. Therefore, no guarantees regarding outcomes are expressed or implied. 4. If conditions materially change during the course of this project, we reserve the right to renegotiate this contract to reflect the changed conditions. 5. All Drexel, Barrel) & Co. invoices are due and payable within 30 days of the invoice date. Payments not received within said period will accrue a late fee on the unpaid balance at an annual rate of 18 percent, compounded daily. 6. Drexel Barrel) standard contract conditions are enclosed; a Professional Services Agreement (PSA)will be the legally binding contract for all services. We look forward to being a member of your construction team. If you have any questions or comments, please do not hesitate to call. Sincerely, Drexel, Barrel) & Co. David W. Peek, P.E. Engineering Manager Enclosures: 2007 Fee Schedule Terms and Conditions Weld City Parking Lot-Growling Bear.doc , 0.9/14/07 10:46 FAX 970 351 0665 DREXEL DARRELL @J 004 Drexel, Barrel! &Co. TERMS AND CONDITIONS t. SERVICES 1.1. Client desires to retain Drexel to provide Client with certain Services(as defined below)with respect to the Client's project on the Project Site as described in the Scope of Work. 2. DEFINITIONS the scope thereof,and the applicable 2.1. "Scope of Work"shall mean the proposed woe described on the attached Services Agreement which spedfies the Services, p fees for the Services. The Scope of Work shall be governed by these Terms and Conditons. 2.2. "Services"shalt mean the work to be performed by Drexel on the Clients project,subject to the terms of this Agreement,as specified in the Scope of Work. 3. CHARGES,PAYMENT AND TAXES 3.1. Fees for Services. Unless otherwise expressly stated in the Scope of Work,Services shall be provided on a time and material(TSM')basis at Drexe s Fee Schedule rates current when the Services are performed(which rates shell be set forth in an attachment to the Scope of Work). The Fee Schedule may be modified at the commencement of each calendar year and,as modified,shall be effective thereafter. If the parties agree upon a cost limit for the Project it shall be stated in the Scope of Work and shall be deemed the maximum amount to be pad by Client on a TIM basis, It which the Services Sri Fee sane to be ah be blued and paid vided on a FftedyFee based upon said elm's Fee is ee the chat shall fbe paid by om Client for the Services provided ofon in the Scope of Work,Drexel shall provide the Services for new or additional work on a TIM basis not estimate of percentage ofthe work ess al ed. If the Scope dik is theicos, subject to the cost limit or Fixed Fee unless a written change order modifying the cost limit or Fixed fee for the nodded Scope of Work is signed by the parties. 3.2. Reimbursable Expenses. Client shall reimburse Drexel for reasonable travel,communications,equipment rental,consultant's fees, disposal fees, reproduction, delivery and express shipping fees, subcontractor fees and expenses and other out-of-pocket expenses incurred in conjunction with the Services. All such reimbursebles shall be charged and billed at 1.15 times the direct out-of-pocket expense. 3.3, Invoicing and Payment. Drexel shall invoice Client monthly.unless otherwise agreed in the Scope of Woork. Pallent of iln September amountsld hall be by e due within 45 days from the last day of the month for which services were rendered(Ue'Grace Period')(e.g.,payment performed Nov dailyer , Any amount payable by Client hereunder that remains unpaid after the Grace Period shall be subject to an interest rate of 1.5%per month,compounded and interest shall accrue commencing with the first day of the Grace Period.until the amount is paid. In the event any amount payable by Client hereunder remains unpaid after the Grace Period,in addition to other remedies available,Drexel shall be entitled,but not obligated,without terminating this Agreement to cease all work provided pursuant to this Agreement until paid in full,which cessation shall extend all time-related obligations of Drexel. 3.4. Taxes and Governmental Fess. The lees and rates described above do not include any applicable taxes or tees levied or charged by any governmental entity. If Drexel is required to pay any federal,state or local taxes or fees based on or in connection with Its performance of the Servces under this Agreement(other than taxes based on Drexel's income),such taxes and fees shall be billed to and paid by Client as a reimbursable expense pursuant to the provisions of Paragraph 3.2 above. 3.5. Retainer. In the event Client has provided to Drexel a Retainer,said Retainer shall be applied to amounts due under the final invoice submitted by Drexel upon completion of the work;provided,however,that if Client fails to timely pay an earlier invoice,Drexel may utilize any or all of the Retainer to pay such invoice and Client art,amount n excess oftely plenish the amounts remaining ning due from Cainer, The lient Drexel shall may be refund efund such excess to Client within thd by Drexel to satisfy,in whole or in irty(30)days following co default of Cfient.mplen tion of the wore event the k twiner is in an 3.6. Accuracy of Invoices. Client agrees that invoices from Drexel to Client are correct,conclusive,and binding on Client unless Client within thirty(30)days from the date of the invoice,notifies Drexel in writing of alleged inaccuracies,discrepancies,or errors in the invoice. 3.7. Fee Adjustment Due to Cessation of Work. In the event that Client requests Drexel to suspend or cease performance of the work or Drexel ceases its performance as provided under the terms of this Agreement,Client agrees to pay additional fees and expenses resulting from such suspension of work on a TIM basis as a modification to the Scope of Work, 3.9. Lien Rights- Client agrees that Drexel shall have a mechanic's lien upon the privately owned real property included within the Project Site for all unpaid sums due pursuant to this Agreement. Client further agrees and specifically acknowledges that all Services provided es set forth in the Scope of Work,as may be amended. shall be conclusively deemed to have been provided as an Improvement to and upon the privately owned real property within the Project Site, If Client is a governmental entity or the Project Sue is a public project,the foregoing shall not apply,but Drexel shall retain all rights pursuant to C.R.S.§38-26-101 et.seq. 3.9. Rate Revisions. Drexel Bartell adjusts the attached Fee Schedule annually on January 1. Projects extending beyond January 1 of each year shall be subject to the new Fee Schedule. 4. PROJECT 4.1. Access to Project Site. Client agrees to cooperate in every way requested by Drexel to expedite the commencement end completion of the work set forth in the Scope of Work, Ckent agrees to provide Drexel access to the Project Site and to make available any records,documents,deeds or other items requested by Drexel for the reasonable performance of the work. If the Client does not own privately owned reel property within the Project Site,Client shall provide to Drexel written authorization from the owner of such property to perform the work described in the Scope of Work. 4,2. Right of Entry. Client grants Drexel,its agents,employees.consultants,contractors and subcontractors the right to enter the Project Site for the purpose of studying,researching,sampling and testing as necessary to perform the Services. 5. TERM AND TERMINATION - 5,1. Term. This Agreement shall commence on the Commencement Dale set forth n the Scope of Work and continue until the work'a completed and full payment has been received. 5.2. Termination for Breach. Either party may terminate this Agreement if the other party is in material breach of this Agreement or the Scope of Work and has not cured such breath within 15 days of written notice specifying the breach. Consent to extend the cure period for a non-monetary breath shall not be unreasonably withheld, so long as the breaching party has commenced efforts to cure during the 15-day notice period and pursues cure of the breach in good faith. 5.3. Termination for Cause. Drexel may terminate this Agreement upon 15 days written notice to Client in the event that 5.3.1. Client should become insolvent or have a receiver appointed aver any of its assets; 5.3.2. Proceedings are instituted by or against client for winding up,reorganization,or bankruptcy; 5.3.3. Client makes an assignment for benefit of or composition with its creditors; 5.3.4. Client,a governmental entity,or other cause beyond control of Drexel causes the work to be discontinued for a period in excess of ninety(90)days or 5.3.5. Due to matters beyond the control of Drexel,the work described in the Scope of Wont has not been completed by the end of the second year from the Commencement Date. 5.4. Effect of Termination. The parties'rights and obligations under Article 3,Article 6,and Section 7.2 shall survive termination of this Agreement and completion of the Services. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it,including injunctive relief. Termination shall not relieve Client of is obligation to pay: (a)all charges that accrued prior to such termination.(b)all charges incurred by Drexel after such termination in connection with the withdrawal of equipment and personnel from the Project Site,and(c)lost profits and overhead unless the termination results from Drexel's breach. M.IFormslFee ScheduksiTern s And Conditions.Doc February 21,2006 2:18:00 PM , 0.9/14/07 10:47 FAX 970 351. 0665 DREXEL BARRELL• a 005 2 Drexel, Barrel!3 Co.. Terms and Conditions(continued) 6. WARRANTY,REMEDY AND LIMITATION OF LIABILITY 6.1. Warranty. Drexel warrants that the Services shall be performed consistent with generally accepted standards of care of professional engineers and surveyors in the locality of the Project Ste. 6.2. Limitations on Warranty. Client must report any deficiencies in the Services to Drexel in writing within 60 days of completion of the Services in order to receive the Iwarranty remedy escribed below.THE NCLUDING THEd IMPLIEDWARRANTIES AOF MERCHANTABILITY AND FITNESS FORIEU OF ALL OTHER WARRANTIES,WHETHER EXPRESS OR IMPLIED, A PARTICULAR PURPOSE. 6.3. Limitation of Llability/Exclusive Remedy, For any claim against Drexel(whether it is for breach of warranty,for tort,for breach of contract,or otherwise),Drexel shall not be liable for any indirect,incidental,special or consequential damages,or damages for loss of profits,revenue,or use incurred by the Client or any third party. The rats have been allocated such that the Client agrees to the fullest extent permitted by law that Drawers choice,be one maf ximum follolity wing:y 1 Client li t nor any warranty claims, of damages,or breaches arising out of this Agreement and the provision of its Services shall,at the Services,(b)the fees paid to Drexel under this Agreement,or(c)$50,000. 6.4. Indemnification. Client shall Indemnify,defend and hold Drexel harmless from and against any and all demands,suits,causes of action,judgments,expenses, attorneys'fees and losses(collectively,'Claims")arising out of or in connection with bodily injury(including death)to persons or damage lm ant acts or properly resulting s of from conditions at the Project Site.the inaccuracy of data or information supplied by Client,work performed by others, negligent Client,Its agents or employees. 6.5. Estimates. Drexel makes no representation or warranty concerning the estimated quantities,land areas,or probable costs made in connection with surveys, maps,plans,specifications,reports or drawings,other than hat all such quantities,areas,end costs are estimates only. Certified land areas will only be provided when requested in writing and at additional charge to client. 7. GENERAL 7.1. Governmental Approvals. If set forth in the Scope of Work,Drexel agrees to assist and advise client in obtaining the necessary governmental approvals for the project provided,however,that all services provided in connection with such governmental approvals shall be paid on a T&M basis notwithstanding any cost limit or Fixed Fee. Drexel does not make any warranties or representations regarding the likelihood or timing of governmental approvals. 7.2. Documents. Drexel shall have the right to retain the original copies of all documents,reports,surveys,plans,drawings,specifications,boring logs,field notes, laboratory test data,calculations or estimates prepared by Drexel in performing the Services(the"Documents")all of which shall remain the property of Drexel and may be used by Drexel without Client's consent. Client agrees not to use or rely on any Documents other than in connection with the Project without Drexel's prior written consent. Any such use of or reliance on the Documents without Drexel's permission is at Client's sole risk,and Client shall indemnify,defend and hold Drexel harmless from any and all Claims arising from such unauthorized use. Upon request and payment of the costs involved and provided Client is not then in breach of this Agreement;Drexel shall provide copies of the Documents to Client. 7,3. Subcontracting. Drexel shall be authorized to subcontract any of the Services, but such subcontracting shall not relieve Drexel of any of the responsibilities or obligations under this Agreement The fees and expenses of such subcontractors omissions h obh be ee deemed ofrsubcontractor's S officers,t to the agents,r anC employees. s etTorth in Article 6 above,Drexel shall be and will remain responsible to Client for the acts,errors, 9 any 7.4. Force Majeure. Drexel shall not be responsible for damages or delay in performance caused by events beyond the control of Drexel,including without limitation,acts of God strikes,lockouts,accidents,the actions of governmental entities,failures of Client or others to provide timely information to Drexel,or otherwise. 7.5. Third-Party Beneficiary. Client and Drexel agree that there are no express,intended,or implied third-party beneficiaries to this Agreement,and the Agreement may only be enforced by the undersigned parties. 7.6. Relationship between the Parties. Drexel is an entity independent from Client and is in direct control of its direction and timing of actions. This Agreement does not establish a joint venture,agency or partnership between the parties,nor does it create an employer-employee relationship. Each party shall be solely responsible for payment of all compensation owed to its employees,as well as employment related taxes. Drexel is not responsible for the performance of work by third parties (other than Drexel subcontractors),including without limitation construction contractors. 8. MISCELLANEOUS 8.1. Governing Law, The laws of the State of Colorado shall govern this Agreement,and all matters arising out of or relating to this Agreement 8.2. Jurisdiction. My legal action or proceeding relating to this Agreement shall be adjudicated in the District Court of the County of Boulder,State of Colorado,or the United States District Court for the Stale of Colorado,except that any action involving perfection or foreclosure of a mechanics lien shall be adjudi e aford esaid the courts District Court for the county In which the Project Site is located. Drexel and Client agree to submit to the jurisdiction of,and agree that venue is proper in, in any such legal action or proceeding. Drexel,Barrel&Co.shall be awarded all attorney fees and costs it incurs in enforcing this agreement- 6.3. Notice. All notices,including notices of address change,required or permitted to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first-class mall to the addresses for the parties listed in the Scope of Work. 8.4. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable,the remaining provisions of this Agreement shall remain in full force.not constitute a r any other or ent defautt or breach. t or 6.5. Waiver. The wnpayerm bynt either action,regardless of default arising o of ut of this Agreements Agreement may be brought by either f party more than oneyear after the cause of action has f actions for nonpayment, accrued. 8.6. Successors and Assigns. This Agreement shall be binding upon all parties hereto and their respective heirs,executors,adminstrators,successors,and assigns. Neither party may assign its interest herein without the prior written consent of the other party,which consent shall not be unreasonably withheld. Notwithstanding the above,no assignment shall operate to relieve the assignor of its obligations hereunder. 8.7, Entire Agreement. This Agreement and the Scope of work constitute the complete agreement between the parties and supersede all previous and contemporaneous agreements,proposals,or representations,written or oral.concerning the subject matter of his Agreement. Neither this Agreement nor the Scope of Work may be modified or amended except in writing signed by a duly authorized representative of each party;no other act,document,usage,or custom shall be deemed to amend or modify this Agreement or the Scope of Work. It Is expressly agreed that any terms and conditions of any request or proposal for services by Client shall be superseded by the terms end conditions of this Agreement,including the Services Agreement,these Terms and Conditions,and the Fee Schedule. M:IFannslFee ScheduieslTermx And Condifioro'.Doc February 21,2006 2:18:00 PM 09/14/07 10:47 FAX 970 351 0665 — DREXEL BARRELL la 006 _ Boulder w�. Coincide Springs /�\ Greeley Ste:eley Springs Grand junction DREXEL, BARRELL 8 CO. FEE SCHEDULE - (For all offices:Effective January 1,2007) I. PERSONNEL: CATEGORY HOURLY CATEGORY HOURLY RATE RATE — General: Surveying: Principal/Senior Consultant $155.00 Sr.Survey Analyst $110.00 Associate $140.00 Survey Analyst $90.00 Department Head $135.00 Survey Tech Ill $85.00 Asst.Department Head $125.00 Survey Tech II $75.00 Survey Tech I $65.00 Engineering: • 1 Person-Survey Crew $90.00 Sr.Project Manager/Engineer $120.00 2 Person Survey Crew $135.00 Project Manager $115.00 3 Person Survey Crew $175.00 Project Engineer $100.00 ' Design Engineer III $95.00 Construction: . Design Engineer II $85.00 Sr.Construction Inspector $80.00 Design Engineer I $75.00 Construction Inspector $70.00 • CAD: Administration: • Technician • $90.00 Controller $100.00 Sr.CAD Drafter $75.00 Bookkeeper $60.00 CAD Drafter $70.00 Word Processing/Clerical $50.00 Misc: Expert Witness Preparation $200.00 ' and Testimony II. SUB-CONSULTANTS: Unless agreed otherwise in the Professional Services Agreement, Drexel Barrel!adds a 15% markup to invoices from sub-consultants to cover administrative and project management expenses. III. MILEAGE: Unless agreed otherwise in the Professional Services Agreement,-Drexel Barrel) charges for all project • related mileage at the rate of$0.75/mile. IV. TRAVEL TIME: Unless agreed otherwise in the Professional Services Agreement, Drexel Barrel! charges for travel time to and from the project site. . V. REPROGRAPHICS: Drexel Barrel!charges the following rates for reprographics: - - ITEM RATE Plots(mylar) $3.50/square foot Plots(vellum) $1.00/square foot Plots/Prints(bond) $0.50/square foot Photocopies(up to 11"x 17") $0.25 each CD-ROM w/electronic drawing files,incl. $300.00 each preparation Internal check prints and plots will be charged at 25%of the above rates. Any items not listed,or reprographics provided by outside printing companies will be charged at Drexel Barrelfs cost plus 15%. VI. FIELD SUPPLIES: Unless otherwise stated in the Professional Services Agreement, standard survey supplies(stakes, pin caps,etc.)are included in the negotiated fee. Drexel Bartell charges an additional$100.00 per monument and$200.00 for monument boxes when the project requires. VII. DELIVERY SERVICES: Drexel Barrel)will add a 15%mark-up to all messenger and overnight delivery service fees. VIII. OUT-OF-TOWN EXPENSES: On projects requiring overnight lodging, Drexel Barrell charges a per diem rate for meals,lodging,and related expenses. The per diem rate will be Drexel Barrell's costs plus 15%. IX. RATE REVISIONS: Drexel Barrell adjusts this Fee Schedule annually on January 1. Projects extending beyond December 31 of each year shall be subject to the new Fee Schedule. M:\Forms\Fee Schedules12007 Fee Schedule.doc Ill 11212007 1:42 PM Hello