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WELD COUNTY, COLORADO
REQUEST FOR PROPOSAL
„FOR DESIGN BUILD SERVICES
BOOK 1 CONTRACT
High Plains Blvd. (CR 9.5)
from CR 32 to CR 34
PROJECT NO.: B2400039
February 20, 2024
REQUEST FOR PROPOSAL DUE: April 5, 2024
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
1.0 CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT DOCUMENTS 5
2.0 OBLIGATIONS OF CONTRACTOR 9
3.0 INFORMATION SUPPLIED TO CONTRACTOR; RESPONSIBILITY FOR DESIGN; DISCLAIMER 15
4.0 TIME WITHIN WHICH PROJECT SHALL BE COMPLETED; SCHEDULING 17
5.0 CONTROL OF WORK 20
6.0 ACCESS TO SITE, UTILITY RELOCATIONS, ENVIRONMENTAL MITIGATION 24
7.0 EQUAL EMPLOYMENT OPPORTUNITY; SUBCONTRACTS; LABOR 30
8.0 SURETY BONDS 34
9.0 INSURANCE 35
10.0 RISK OF LOSS 40
11.0 PAYMENT 42
12.0 VALUE ENGINEERING AND NEGOTIATED CHANGES 48
13.0 CHANGES IN THE WORK 51
14.0 SUSPENSION OF WORK 74
15.0 TERMINATION FOR CONVENIENCE 75
16.0 DEFAULT 82
17.0 DAMAGES 87
18.0 INDEMNIFICATION 89
19.0 PARTNERING, CLAIMS FOR ADJUSTMENT AND DISPUTES 93
20.0 ACCEPTANCE OF PROJECT 96
21.0 WARRANTIES 101
22.0 DOCUMENTS AND RECORDS 105
23.0 COOPERATION AND COORDINATION WITH OTHERS 111
24.0 MISCELLANEOUS PROVISIONS 112
EXHIBIT A - ACRONYMS AND DEFINITIONS 120
A.2 DEFINITIONS 127
CERTIFICATION STATEMENT 154
NOTICE OF AWARD 165
NOTICE TO PROCEED 166
CHANGE ORDER NO. (EXAMPLE) 167
FORCE ACCOUNT - MINOR CONTRACT REVISION NO. (EXAMPLE) 169
CERTIFICATE OF SUBSTANTIAL COMPLETION 170
LIEN WAIVER (GENERAL CONTRACTOR) 171
NOTICE OF ACCEPTANCE 173
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
EXHIBITS
Exhibit A Acronyms and Definitions
Exhibit B Form P — Completion Deadlines
Exhibit C Form I — Key Personnel
Exhibit D Insurance Requirements
Exhibit E Certification Statement
Exhibit F Letter of Vested Interest
Exhibit G ATC Submittal
Exhibit H RFP Submittal
Exhibit J Form N — Payment Bond
Exhibit K Form O — Performance Bond
Exhibit L Weld County Forms
Notice of Award (Example)
Notice to Proceed (Example)
Change Order Form (Example)
Force Account — Minor Contract Revision Form (Example)
Force Account — Accesses Form (Example)
Force Account — Utility Relocation Form (Example)
Certitificate of Substantial Completion (Example)
Lien Waiver for General Contractor (Example)
Lien Waiver for Subcontractors (Example)
Notice of Acceptance (Example)
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
This Design/Build Contract is entered into this day of , 2024, by and
between the Weld County Board of County Commissioners, on behalf of Weld County,
Colorado, hereinafter referred to as the "County", and Kraemer North America, LLC, a
Corporation Licensed to do business in the State of Colorado ("Contractor"), with
reference to the definitions contained in Exhibit A hereto and the following:
RECITALS
1. The Project involves High Plains Blvd. (A.K.A. - CR 9.5) between CR 32 at the south
end and CR 34 at the north end. High Plains Blvd. is planned to be a major north -south
parallel thoroughfare for I-25 in Weld County that will increasingly be used for
residential and commericial traffic.
2. The purpose of the project is to construct approximately one mile of High Plains Blvd. as
an interim two lane roadway.
3. In addition to constructing the roadway, key elements of the Project include coordination
of design and relocation of utilities, coordination of relocation of hydrocarbon pipelines
and facilities, coordination of relocation of irrigation ditches and facilities, construction
phasing, property/right-of-way acquisition, drainage control, flood;implementation of the
access control plan, and community outreach.
NOW, THEREFORE, in consideration of the sums to be paid to the Contractor by the County,
the foregoing premises and the covenants and agreements set forth herein, the parties hereto
agree as follows:
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
1.0 CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT DOCUMENTS
1.1 Certain Definitions
Exhibit A hereto contains the meaning of various terms used in the Contract Documents.
1.2 Contract Documents
The term "Contract Documents" shall mean the documents listed in Section 1.3, including all
exhibits thereto.
1.3 Order of Precedence
Each of the Contract Documents is an essential part of the Contract, and a requirement occurring
in one is as binding as though occurring in all. The Contract Documents are intended to be
complementary and to describe and provide for a complete Contract. In the event of any conflict
among the Contract Documents, the order of precedence shall be as set forth below:
1. Book 1, as executed by the County and the Contractor, including all exhibits and
Addendums (Design/Build Contract).
2. Book 2, (Technical Requirements, including all Appendices, Addendums, and Exhibits
(Technical Requirements).
3. Book 3 (Applicable Standards, Data and Reports)
4. Book 4 (Contract Drawings)
5. The Proposal Documents, to the extent that they meet or exceed the requirements of the
other Contract Documents. In other words, if the Proposal Documents include statements
that can reasonably be interpreted as offers to provide higher quality items than otherwise
required by the Contract Documents, or to perform services in addition to those otherwise
required or otherwise contain terms which are more advantageous to the County than the
requirements of the other Contract Documents, the Contractor's obligations hereunder
shall include compliance with all such statements, offers, and terms. The Proposal
Documents include, but are not limited to, the Contractor's written responses to the
Request for Qualifications and the Request for Proposals, the Contractor's Best and Final
Offer, the Contractor's written responses to questions discussed at any interview, and any
official written communication (mail, email, or otherwise) between the Contractor and
the County during the procurement process.
Notwithstanding the foregoing, in the event of conflicting requirements involving any
requirement within a Book or a reference contained within a Book of the Contract Documents,
the County shall have the right to determine, in its sole discretion, which requirement(s) apply.
The Contractor shall request the County's determination respecting the order of precedence
among conflicting provisions promptly upon becoming aware of any such conflict.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
1.4 Book 5 - Reference Documents
The documents included in the Reference Documents are for information only and are not
Contract Documents to be relied upon by the Contractor except to the extent specifically
provided by the Contract Documents (excluding the Proposal Documents). Cross-references in
the Contract Documents to the Reference Documents do not incorporate the Reference
Documents or portions of the Reference Documents as Contract Documents or requirements,
except to the extent that specific Reference Documents have been specifically incorporated into
the Contract Documents (excluding the Proposal Documents).
1.5 Interpretations
In the Contract Documents, where appropriate:
1. The singular includes the plural and vice versa;
2. References to statutes or regulations include all statutory or regulatory provisions
consolidating, amending, or replacing the statute or regulation referred to, regardless of
when such amendments were enacted;
3. Words such as "herein," "hereof," and "hereunder" refer to the entire document in which
they are contained and not to any particular provision or section;
4. Words not otherwise defined that have well-known technical or construction industry
meanings are used in accordance with such recognized meanings;
5. References to Persons include their respective permitted successors and assigns and, in
the case of Governmental Persons, Persons succeeding to their respective functions and
capacities; and
6. Words of any gender used herein include each other gender where appropriate.
Unless otherwise specified, lists contained in the Contract Documents defining the Project or the
Work shall not be deemed all-inclusive. The Contractor acknowledges and agrees that it had the
opportunity and obligation, prior to submission of its Proposal, to review the Contract
Documents and to bring to the County's attention any conflicts or ambiguities contained therein.
The Contractor further acknowledges and agrees that it has independently reviewed the Contract
Documents with legal counsel, and that it has the requisite experience and sophistication to
understand, interpret and agree to the particular language of the Contract Documents.
Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of the
Contract Documents, the Contract Documents shall not be construed against the Person that
prepared them. The County's final answers to the questions posed during the proposal process
for the Contract shall be incorporated into the Addendums and shall be included as part of Book
2.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
1.6 Referenced Standards, Codes, or Criteria
Except as otherwise specified in the Contract Documents, or otherwise directed by the County,
references to standards, codes, or criteria, or to the latest version of standards, codes, or criteria,
shall mean the latest version in effect on the Proposal Due Date.
1.7 Omission of Details; Clarification by the County
Neither the Contractor nor the County shall take advantage of any apparent Error in the Contract.
Should it appear that the Work to be done or any matter relative thereto is not sufficiently
detailed or explained in the Contract Documents, the Contractor shall apply to the County in
writing for such further written explanations as may be necessary and shall conform to the
explanation provided. The Contractor shall promptly notify County of all Errors which it may
discover in the Contract Documents, and shall obtain specific instructions in writing regarding
any such Error before proceeding with the Work affected thereby.
The fact that the Contract Documents omit or mis-describe any details of any Work which are
necessary to carry out the intent of the Contract Documents, that are customarily performed
under similar circumstances, shall not relieve the Contractor from performing such omitted Work
or mis-described details of the Work, and they shall be performed as if fully and correctly set
forth and described in the Contract Documents, without entitlement to a Change Order hereunder
except as specifically allowed under Section 13.
1.8 Computation of Periods
References to "days" or "Days" contained in the Contract Documents shall mean Calendar Days
unless otherwise specified, provided that if the date to perform any act or give any notice
specified in the Contract Documents (including the last date for performance or provision of
notice "within" a specified time period) falls on a non -Working Day, such act or notice may be
timely performed on the next succeeding day which is a Working Day. Notwithstanding the
foregoing, requirements contained in the Contract Documents relating to actions to be taken in
the event of an emergency, requirements contained in Section 5.3 and any other requirements for
which it is clear that performance is intended to occur on a non -Working Day, shall be required
to be performed as specified, even though the date in question may fall on a non -Working Day.
1.9 Standard for Approvals
In all cases where approvals, acceptances or consents are required to be provided by the County
or the Contractor hereunder, such approvals, acceptances or consents shall not be withheld
unreasonably except in cases where a different standard (such as sole discretion) is specified, and
shall not be unreasonably delayed if no response time is specified. In cases where sole discretion
is specified, the decision shall not be subject to dispute resolution hereunder.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
1.10 Contact Information
County Project Manager
Cameron Parrott, P.E.
Design Build Manager
Mick McNish, P.E.
970-397-1305 (cell) 970-400-3745 (office)
303-901-8899 (cell) 303-327-4043 (office)
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
2.0 OBLIGATIONS OF CONTRACTOR
2.1 Performance Requirements
2.1.1 Performance of Work
All materials, services and efforts necessary to achieve Project Completion and Final Acceptance
on or before the applicable Completion Deadlines shall be the Contractor's sole responsibility,
except as otherwise expressly provided in the Contract Documents. Subject to the terms of
Section 13, the costs of all such materials, services and efforts are included in the Contract Price.
2.1.2 Performance Standards
The Contractor shall furnish the design of the Project and all engineering services required
therefore in accordance with the skill, prudence, judgment and diligence as like situated
members of the engineering profession commonly possess and exercise (but at least meeting the
terms, conditions and requirements of the Contract Documents), and shall construct the Project
as designed, in a good and workmanlike manner, free from defects, and in accordance with the
terms and conditions set forth in the Contract Documents.
2.1.3 Performance as Directed
At all times during the term hereof, including during the course of and notwithstanding the
existence of any dispute, the Contractor shall perform as directed by the County in a diligent
manner and without delay, shall abide by the County's decision or order, and shall comply with
all applicable provisions of the Contract Documents. If a dispute arises regarding such
performance or direction, the dispute shall be resolved in accordance with Section 19.
2.2 General Obligations of Contractor
The Contractor, in addition to performing all other requirements of the Contract Documents,
shall:
1. Furnish all design and other services, provide all materials and labor and undertake all
efforts necessary or appropriate (excluding only those services, materials and efforts
which the Contract Documents specify will be undertaken by other Persons): (i) to
construct the Project and maintain it during construction in accordance with the
requirements of the Contract Documents, including the Contract Schedule, all Legal
Requirements, all Governmental Approvals, the Quality Management Plan, the Traffic
Management Plan, the Safety Management Plan, the Public Information Plan, and
Approved Alternative Technical Concept (ATC), and all other applicable safety,
environmental, licensing and other requirements, taking into account the Right -of -Way
(ROW) Plans and other constraints affecting the Project, so as to achieve Project
Completion and Final Acceptance by the applicable Completion Deadlines; and
(ii) otherwise to do everything required by and in accordance with the Contract
Documents.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
2. At all times provide a Contractor Design -Build Project Manager, Approved by the
County, who: (i) will have full responsibility for the prosecution of the Work; (ii) will act
as agent and be a single point of contact in all matters on behalf of the Contractor;
(iii) will be present (or their Approved designee will be present) at the Site at all times
that Work is performed; and (iv) will have authority to bind the Contractor on all matters
relating to the Project.
3. Provide a Key Personnel who is a registered licensed professional engineer in the State of
Colorado who is in responsible charge of the design Work.
4. Obtain all Governmental Approvals (other than Approvals agreed to be obtained by the
County), and specifically including any Governmental Approvals required to implement
any Approved ATCs, and Additional Requested Elements (AREs) incorporated into the
Contract Documents.
5. In addition to the ATCs, comply with all ATC Conditions specified by the County in its
Approval.
6. Comply with all conditions imposed by and undertake all actions required by and all
actions necessary to maintain in full force and effect, all Governmental Approvals,
including implementation of all environmental mitigation measures required by the
Contract Documents, except to the extent that such responsibility is expressly assigned in
the Contract Documents to another Person.
7. Provide such assistance as is reasonably requested by the County in dealing with any
Person and/or in prosecuting and defending lawsuits in any and all matters relating to the
Project, which may include providing information and reports regarding the Project,
executing declarations and attending meetings and hearings, but which shall in no event
be deemed to require the Contractor to provide legal services.
8. Comply with all requirements of all applicable Legal Requirements, including: (i) the
Environmental Laws, including all environmental mitigation and monitoring measures
required for the Project, including those set forth in Book 2, Section 5, and requirements
regarding the handling, generation, treatment, storage, transportation and disposal of
Hazardous Substances; and (ii) the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. § 12101 et seq., including any amendments, as well as all applicable regulations
and guidelines.
9. Cooperate with the County and Governmental Persons with jurisdiction over the Project
in the review and oversight of the Project and other matters relating to the Work.
10. Pay third parties as required by the Contract Documents, including but not limited to,
payments to Utility Owners, hydrocarbon pipeline owners, irrigation facility owners, or
Railroad companies, if any.
11. Supervise and be responsible to the County for acts and omissions of all Contractor -
Related Entities, as though the Contractor directly employed all such Persons.
12. Mitigate delay to the Project and mitigate damages due to delay in all circumstances, to
the extent possible, including by resequencing, reallocating or redeploying the
Contractor's forces to other elements of the Project or to other work, as appropriate.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
13. Pay all applicable federal, State, and local sales, consumer, use, and similar taxes,
property taxes and any other taxes, fees, charges, or levies imposed by a Governmental
Person, whether direct or indirect, relating to or incurred in connection with the
performance of the Work.
23 Representations, Warranties, and Covenants
The Contractor represents, warrants, and covenants for the benefit of the County as follows:
2.3.1 Maintenance of Professional Qualifications
The Contractor and any design Subcontractor(s) have maintained, and throughout the term of the
Contract and any design Subcontract(s) shall maintain, all required authority, license status,
professional ability, skills and capacity to perform the Work, and shall perform them in
accordance with the requirements of the Contract Documents.
2.3.2 Evaluation of Constraints
The Contractor has evaluated the constraints affecting delivery of the Project, including the
possible ROW acquisitions and the Basic Configuration, as well as the conditions of the
Environmental Approvals, and the Project can be delivered within such constraints. This Section
is subject to the terms of Section 2.4.3. (Necessary Design Change).
2.3.3 Feasibility of Performance
The Contractor has evaluated the feasibility of performing the Work within the time specified
herein and for the Contract Price, such performance (including achievement of Project
Completion and Final Acceptance by the applicable Completion Deadlines, for the Contract
Price) is feasible and practicable.
2.3.4 Review of Site Information
The Contractor has, prior to submitting its Proposal, in accordance with prudent and generally
accepted engineering and construction practices, inspected and examined the Site and
surrounding locations, and undertaken other appropriate activities sufficient to familiarize itself
with surface conditions and subsurface conditions affecting the Project, to the extent the
Contractor deemed necessary or advisable for submittal of a Proposal. As a result of such
review, inspection, examination and other activities, the Contractor is familiar with and accepts
the physical requirements of the Work. The Contractor acknowledges and agrees that changes in
conditions at the Site may occur after the Proposal Due Date, and that the Contractor shall not be
entitled to any Change Order in connection therewith except as specifically permitted under
Section 13. Before commencing any Work on a particular aspect of the Project, the Contractor
shall verify all governing dimensions and conditions at the Site and shall examine all adjoining
work, which may have an impact on such Work. The Contractor shall be responsible for
ensuring that the Design Documents and Construction Documents accurately depict all
governing and adjoining dimensions and conditions.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
2.3.5 Governmental Approvals
The Contractor has no reason to believe that any Governmental Approval required to be obtained
by the Contractor will not be granted in due course and thereafter remain in effect so as to enable
the Work to proceed in accordance with the Contract Documents. If any Governmental
Approvals required to be obtained by the Contractor must formally be issued in the name of the
County, the Contractor shall undertake all efforts to obtain such approvals, subject to the
County's reasonable and timely cooperation with the Contractor, including execution and
delivery of appropriate applications and other documentation in forms Approved by the County.
The Contractor shall assist the County in obtaining any Governmental Approvals which the
County may be obligated to obtain, including providing information requested by the County and
participating in meetings regarding such approvals.
2.3.6 Progression of Work
The Contractor shall at all times schedule and direct its Work to provide an orderly progression
of the Work to achieve Completions and Final Acceptance by the applicable Completion
Deadlines and in accordance with the Contract Schedule, including furnishing such employees,
materials, facilities and equipment and working such hours (including extra shifts, overtime
operations, non -Working Days) as may be necessary to achieve such goals, all at the
Contractor's own expense, except as otherwise specifically provided in Section 13.
2.3.7 Employee Performance Requirements
All employees shall have the skill and experience and any licenses or certifications required to
perform the Work assigned to them. If the County determines in its sole discretion that any
Person employed by the Contractor or by any Subcontractor is not performing the Work properly
and skillfully, then, at the written request of the County, the Contractor or such Subcontractor
shall remove such Person and such Person shall not be re-employed on the Project without the
prior written approval of the County. If the Contractor or the Subcontractor fails to remove such
Person(s) or fails to furnish skilled and experienced personnel for the proper performance of the
Work, then the County may, in its sole discretion, suspend the affected portion of the Work by
delivery of written notice of such suspension to the Contractor. Such suspension shall in no way
relieve the Contractor of any obligation contained in the Contract Documents or entitle the
Contractor to a Change Order.
2.3.8 Design and Engineering Personnel
All design and engineering Work furnished by the Contractor shall be performed by or under the
supervision of Persons licensed to practice architecture, engineering or surveying (as applicable)
in the State, and by personnel who are careful, skilled, experienced and competent in their
respective trades or professions, who are professionally qualified to perform the Work in
accordance with the Contract Documents, and who shall assume professional responsibility for
the accuracy and completeness of the Design Documents, Released for Construction Documents,
Field Design Change Documents and As -Built Documents prepared or checked by them.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
2.3.9 Organization
The Contractor is a Corporation duly organized and validly existing under the laws of the State
of Colorado, with all requisite power to own its properties and assets and carry on its business as
now conducted or proposed to be conducted in the State of Colorado. The Contractor is duly
qualified to do business, and is in good standing, in the State of Colorado, and will remain in
good standing throughout the term of the Contract and for as long thereafter as any obligations
remain outstanding under the Contract Documents.
2.3.10 Authorization
The execution, delivery, and performance of the Contract have been duly authorized by all
necessary actions of the Contractor, and, if applicable, the Contractor's members, and will not
result in a breach or a default under the organizational documents of any such Person or any
indenture, loan, credit agreement, or other material agreement or instrument to which any such
Person is a party or by which its properties and assets may be bound or affected.
2.3.11 Legal, Valid, and Binding Obligation
The Contract constitutes the legal, valid, and binding obligation of the Contractor and, if
applicable, of each member of the Contractor.
2.4 Requirements Regarding Basic Configuration and Contract Drawings
2.4.1 Obligation to Review Contract Drawings
Before commencing any design or construction Work in an area, the Contractor shall review the
design contained in the Contract Drawings for constructability and shall notify the County in
writing of any errors, omissions, inconsistencies or other defects in such design affecting
constructability. If, after the start of any design or construction Work, the Contractor becomes
aware of any such error, omission, inconsistency or other defect in the Contract Drawings, the
Contractor shall immediately notify the County of the same.
2.4.2 Required Approvals
If it is necessary to modify the Basic Configuration, any Contract Drawings/ROW Plans in order
to correct any errors, omissions, inconsistencies or other defects, the Contractor shall first obtain
the County's and any third party's written Approvals, where applicable, prior to commencing any
related Work.
2.4.3 Necessary Design Change
If it is necessary, in the County's sole determination to modify the Basic Configuration, any
Contract Drawings/ROW Plans in order to correct an error, omission, inconsistency or other
defect therein, and such modification increases the cost and/or time to perform the Work, the
Contractor shall be entitled to an increase in the Contract Price and/or an extension of the
Completion Deadlines, excluding any costs and/or time that could have been avoided by the
Contractor and subject to the requirements and limitations of Section 13; provided, however, the
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Contractor shall not be entitled to an increase in the Contract Price or an extension of the
Completion Deadlines in connection with errors, omissions, inconsistencies or other defects
related to modifications of the Contract Drawings/ROW Plans as the result of Approved ATCs.
If it is necessary to modify the Basic Configuration, the Contract Drawings/ROW Plans in order
to correct an error, omission, inconsistency or other defect therein, and such modification
decreases the cost and/or time to perform the Work, the Contract Price and/or Completion
Deadlines shall be decreased accordingly. Any such change described in this Section 2.4.3, as
Approved under Section 2.4.2, shall be referred to herein as a "Necessary Design Change" (with
the understanding that a change shall be deemed "necessary" only if the error, omission,
inconsistency or other defect creates a problem which cannot reasonably be corrected without a
change in the Basic Configuration, the Contract Drawings/ROW Plans, as appropriate).
2.5 Design Documents
The Contractor shall furnish the Design Documents to the County and shall obtain the County's
Acceptance of the Final Design Documents as specified in Book 2, Section 3 — Quality
Management. The Contractor shall construct the Project in accordance with the Final Design
Documents. The Final Design Documents may be changed only with the County's Approval of
Field Design Change Documents or through County -Directed Changes. Such Approval(s) shall
be timely considered and shall not be unreasonably withheld.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
3.0 INFORMATION SUPPLIED TO CONTRACTOR; RESPONSIBILITY FOR DESIGN;
DISCLAIMER
3.1 Information Supplied
The County has made available to the Contractor information, which is described in the Contract
Documents and certain Reference Documents regarding the Project, and has allowed the
Contractor access to the Site for purposes of inspection and testing.
3.2 Responsibility for Design
The Contractor agrees that it has full responsibility for the design of the Project and that the
Contractor shall furnish the design of the Project, regardless of the fact that certain conceptual
design work occurred and was provided to the Contractor prior to the date of execution of the
Contract. The Contractor specifically acknowledges and agrees that:
1. AREs approved by the County and included in Contractor's Proposal and Approved
ATCs (including conditions specified by the County in its Approval) are incorporated
into and are a part of the Basic Configuration.
2. The Basic Configuration is preliminary and conceptual in nature.
3. The Contractor is not entitled to rely on and has not relied on: (i) the Reference
Documents; or (ii) any other documents or information provided by the County, except to
the extent specifically permitted in the Contract Documents.
4. The Contractor is responsible for correcting any Errors in the Basic Configuration
through the design and/or construction process as set forth in Book 2 without any
increase in the Contract Price or extension of a Completion Deadline, subject only to the
right to a Change Order for a Necessary Design Change.
5. The Contractor's Warranties and indemnities hereunder cover Errors in the Project even
though they may be related to Errors in the Basic Configuration or Reference Documents,
subject to the terms of Section 2.4.3.
3.3 Disclaimer
3.3.1 No Liability Regarding Reference Documents
The Contractor understands and agrees that the County shall not be responsible or liable in any
respect for any loss, damage, injury, liability, cost or cause of action whatsoever suffered by any
Contractor -Related Entity by reason of any use of any information contained in the Reference
Documents or any action or forbearance in reliance thereon, except to the extent that the County
has specifically provided in the Contract Documents that the Contractor shall be entitled to an
increase in the Contract Price and/or extension of a Completion Deadline with respect to such
matter. The Contractor further acknowledges and agrees that: (i) if and to the extent the
Contractor or anyone on the Contractor's behalf uses any of said information in any way, such
use is made on the basis that the Contractor, not the County, has approved and is responsible for
said information; and (ii) the Contractor is capable of conducting and obligated hereunder to
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
conduct any and all studies, analyses and investigations as it deems advisable to change, recreate,
verify or supplement said information, and that any use of said information is entirely at the
Contractor's own risk and at its own discretion.
3.3.2 No Representation or Warranty Regarding Basic Configuration and Reference
Documents
THE COUNTY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION
CONTAINED IN THE BASIC CONFIGURATION AND REFERENCE DOCUMENTS IS
EITHER COMPLETE OR ACCURATE OR THAT SUCH INFORMATION CONFORMS TO
THE REQUIREMENTS OF THE CONTRACT DOCUMENTS. THE FOREGOING SHALL
IN NO WAY AFFECT THE COUNTY'S AGREEMENT HEREIN TO ISSUE CHANGE
ORDERS IN ACCORDANCE WITH SECTION 13.
3.4 Professional Licensing Laws
The County does not intend to contract for, pay for, or receive any design services that are in
violation of any professional licensing laws, and by execution of the Contract, the Contractor
acknowledges that the County has no such intent. It is the intent of the parties that the
Contractor is fully responsible for furnishing the design of the Project, although the fully
licensed design firm(s) or individuals designated herein will perform the design services required
by the Contract Documents. Any references in the Contract Documents to the Contractor's
responsibilities or obligations to "perform" the design portions of the Work shall be deemed to
mean that the Contractor shall "furnish" the design for the Project. The terms and provisions of
this Section 3.4 shall control and supersede every other provision of the Contract Documents.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
4.0 TIME WITHIN WHICH PROJECT SHALL BE COMPLETED; SCHEDULING
4.1 Time of Essence
Time is of the essence of the Contract.
4.2 Notices to Proceed
4.2.1 Issuance of Notice -to -Proceed
The Contractor shall begin performance of Work as directed and described in Notice -to -Proceed
(NTP) issued by the County. The amount to be paid to the Contractor for Work performed
pursuant to NTP shall not exceed the maximum amount payable for NTP as outlined in Book 2,
Section 2.1.2. The County shall issue NTP upon Acceptance of the Initial Schedule in
accordance with Book 2, Section 2 (Project Management) and Approved Quality Management
Plan (QMP) in accordance with Book 2, Section 3 (Quality Management). The Contractor shall
submit the QMP for design -related work to Weld County for approval prior to commencing any
design -related work for NTP. The entire QMP for all remaining work on the Project must have
Weld County's approval before commencing any construction -related work. The Contractor
shall fully implement the approved QMP. Within ten Working Days after Contractor's submittal
of the Initial Schedule to the County, the County shall either accept the Initial Schedule and issue
NTP or provide Contractor with reasons why it is unable to Accept the Initial Schedule. In the
event that the County fails to either Accept the Initial Schedule and issue NTP or provide reasons
why it is unable to Accept the Initial Schedule within ten Working Days after Contractor's
submittal of the Initial Schedule to the County, such delay thereafter shall constitute a County -
Caused Delay.
4.3 Completion Deadlines
4.3.1 Project Completion Deadline
The Contractor shall achieve Project Completion within the deadline therefore set on Exhibit B.
Said Deadline, as it may be extended hereunder, is referred to as the "Project Completion
Deadline."
4.3.2 Final Acceptance Deadline
The Contractor shall achieve Final Acceptance within 45 days after Project Completion
Deadline. Said deadline for Final Acceptance, as it may be extended hereunder, is referred to as
the "Final Acceptance Deadline."
4.3.3 No Time Extensions
Except as otherwise specifically provided in this Section and Section 13, the County shall have
no obligation to extend the Completion Deadline and the Contractor shall not be relieved of its
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
obligation to comply with the Contract Schedule and Final Acceptance Deadline by the
applicable Completion Deadline for any reason.
4.4 Contract Schedules
The Contractor shall deliver the Work in accordance with the Contract Schedules, as described in
Book 2, Section 2 (Project Management). Such schedules shall also be the basis for determining
the amount of monthly progress payments to be made to the Contractor.
4.5 Recovery Schedule
The Contractor shall submit a Recovery Schedule in accordance with Book 2, Section 2 (Project
Management). All costs incurred by Contractor in preparing and achieving the Recovery
Schedule shall be borne by Contractor and shall not result in a change to the Contract Price,
except to the extent that a change in the Contract Price is permitted in accordance with Section
13.
If a Recovery Schedule would be required in order to meet a Completion Deadline due to an
event which is the County's responsibility as described in Section 13.3.1.2, the County shall have
the right in its sole discretion to decide whether to allow a time extension (with no extended
overhead or other delay or disruption damages payable except as provided in Section 13.5.2) or
to require implementation of the Recovery Schedule without such time extension. In such event
Contractor shall submit to the County at least two alternative Change Order forms, one of which
shall include a Recovery Schedule and show the proposed Acceleration Costs associated with the
Recovery Schedule, and the other of which shall provide for an extension of the Completion
Deadline without any increase in the Contract Price except as provided in Sections 13.3.1.1 and
13.5.2. If the County elects to implement the Recovery Schedule in lieu of a time extension, the
County shall issue a Change Order increasing the Contract Price to account for additional
Acceleration Costs, if any. If it is not feasible to recover to the original Completion Deadline or
if Contractor believes that the costs associated with such a recovery are prohibitive, then the
Contractor shall recommend a date to be shown in the alternative Change Order form.
In the event that the Contractor fails to provide an Approved Recovery Schedule within 30 days
from the Contractor's receipt of a notice to do so, the Contractor shall have no right to receive
progress payments until such time as Contractor has prepared and the County has Approved such
Recovery Schedule.
4.6 Prerequisites for Start of Construction
The Contractor shall not start construction (or recommence construction following any
suspension) of any portion of the Project until all the following events have been fully satisfied
with respect to the Work proposed to be constructed.
1. The County has issued a NTP.
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PROJECT No. B2400039
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2. All Governmental Approvals necessary for construction of such portion of the Project
have been obtained and all conditions of such Governmental Approvals that are a
prerequisite to commencement of such construction have been performed.
3. All insurance policies and bonds required to be delivered to the County hereunder have
been received and Accepted or Approved by the County as applicable and remain in full
force and effect.
4. All necessary rights of access for such portion of the Project have been obtained.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
5.0 CONTROL OF WORK
5.1 Control and Coordination of Work
The Contractor shall be solely responsible for and have control over the construction means,
methods, techniques, sequences, procedures, and Site safety, and shall be solely responsible for
coordinating all portions of the Work under the Contract Documents, subject, however, to all
requirements contained in the Contract Documents.
5.2 Safety
The Contractor shall take all reasonable precautions and be solely responsible for the safety of,
and shall provide protection to prevent damage, injury, or loss to, all persons on the Site or who
would reasonably be expected to be affected by the Work, including individuals performing
Work, employees of the County and its consultants, visitors to the Site and members of the
public who may be affected by the Work. The Contractor shall at all times comply with its
Safety Management Plan. The Contractor shall immediately notify the County if the Contractor
believes that any Contract requirement creates a safety risk.
5.3 Process to be Followed for Discovery of Certain Site Conditions
5.3.1 Notification to the County
If the Contractor becomes aware of: (i) any on -Site material that the Contractor believes may
contain Hazardous Substances that is required to be removed or treated; (ii) any paleontological,
cultural or biological resources; or (iii) any Differing Site Conditions, as a condition precedent to
the Contractor's right to a Change Order, the Contractor shall immediately notify the County
thereof by telephone or in person, to be followed by written notification as soon as practicable.
The Contractor shall immediately stop Work in and secure the area. In such event, the County
will view the location within two Working Days of receipt of notification, and will advise the
Contractor at that time whether to resume Work or whether further investigation is required.
Any delay resulting from the County viewing the location up to two Working Days shall not be
considered a the County -Caused Delay.
5.3.2 Further Investigation
The Contractor shall promptly conduct such further investigations as the County deems
appropriate. Within five Working Days after its initial notice to the County, the Contractor shall
advise the County of any action recommended to be taken regarding the situation in writing. If
Hazardous Substances are involved, the notice shall describe the type of Remediation Work, if
any, which the Contractor proposes to undertake with respect thereto. If paleontological,
cultural, or biological resources are present, the notice shall advise the County what course of
action the Contractor intends to take with respect thereto and whether the location should be
fenced off or whether Work can resume. The County then will determine whether the
Contractor's findings and proposed actions are acceptable and, in writing, either Approve, or
require modification of, the Contractor's proposed actions.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
5.3.3 Recommence Work
The County shall have the right to require the Contractor to recommence Work in the area at any
time, even though an investigation may still be ongoing (so long as such Work is not in violation
of any Legal Requirements or Governmental Approvals). The Contractor shall promptly
recommence Work in the area upon receipt of notification from the County to do so. On
recommencing Work, the Contractor shall follow all applicable procedures contained in the
Contract Documents and all other Legal Requirements with respect to such Work, consistent
with the County's determination or preliminary determination regarding the nature of the
material, resources, species or condition.
5.4 Obligation to Minimize Impacts
The Contractor shall ensure that all of its Activities and the Activities of all Contractor -Related
Entities are undertaken in a manner that will minimize the effect on surrounding property and the
public to the maximum extent practicable.
5.5 Quality Management
5.5.1 Contractor Quality Management
The Contractor shall perform the quality management necessary for the Contractor to comply
with its obligations under the Contract Documents.
5.5.2 Oversight, Verification, Inspection, and Testing by the County and Others
All materials and each part or detail of the Work shall also be subject to oversight, verification
and testing by the County and other Persons designated by the County. Contractor shall not be
relieved of obligations to perform the Work in accordance with the Contract Documents, or any
of its Warranty obligations, by oversight, spot checks, audits, verifications, reviews, tests,
inspections, acceptances or approvals performed by any Persons, or by any failure of any Person
to take such action. The Contractor hereby consents to such oversight, inspection and testing.
Upon request from the County, the Contractor shall furnish information to such Persons as are
designated in such request and shall permit such Persons access to the Site and all parts of the
Work. Oversight, verification, audit, inspection and/or testing do not make any Person who
performs such oversight, verification, audit, inspection and/or testing a party to the Contract nor
will it change the rights of the parties hereto.
When any Utility Owner is to accept or pay for a portion of the cost of the Work, its respective
representatives have the right to oversee, verify, audit, inspect and test the Work.
5.5.3 Obligation to Uncover Finished Work
At all times before Final Acceptance, the Contractor shall remove or uncover such portions of
the finished construction Work as directed by the County. After examination by the County, the
Contractor shall restore the Work to the standard required by the Contract Documents. If the
Work exposed or examined is not in conformance with the requirements of the Contract
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PROJECT NO. B2400039
Book 1 - Contract
Documents, then the cost of uncovering, removing and restoring the Work and recovery of any
delay to the Critical Path occasioned thereby shall be at the Contractor's expense and the
Contract Price shall not be increased as a result. If Work exposed or examined under this
Section 5.5.3 is in conformance with the requirements of the Contract Documents, then any
delay in the Critical Path from uncovering, removing and restoring Work shall be considered a
County -Caused Delay, and the Contractor shall be entitled to a Change Order for the cost of such
efforts and recovery of any delay to the Critical Path occasioned thereby, subject to the
provisions of Section 13. Refer to Section 5.7 for provisions regarding payments owing by the
Contractor to the County, if the County agrees (in its sole discretion) to Accept certain
Nonconforming Work.
5.6 Effect of Oversight, Spot Checks, Verifications, Tests, Acceptances, and
Approvals
5.6.1 Oversight and Acceptance
The Contractor shall not be relieved of its obligation to perform the Work in accordance with the
Contract Documents, or any of its other obligations under the Contract Documents, by oversight,
spot checks, verifications, reviews, tests, inspections, Acceptances, or Approvals by any Persons,
or by any failure of any Person to take such action. The oversight, spot checks, verifications,
audits, reviews, tests, inspections, Acceptances, and Approvals by any Person do not constitute
Final Acceptance of the particular material or Work, or waiver of any legal or equitable right
with respect thereto. The County may reject or require the Contractor to remedy any
Nonconforming Work and/or identify additional Work which must be done to bring the Project
into compliance with Contract requirements at any time prior to Final Acceptance, whether or
not previous oversight, spot checks, verifications, audits, reviews, tests, inspections,
Acceptances, or Approvals were conducted by any Person.
5.6.2 No Estoppel
The County shall not be precluded or estopped by any measurement, estimate, or certificate
made either before or after Final Acceptance and payment therefore, from making a
determination that any such measurement, estimate or certificate is incorrectly made or untrue, or
from showing the true amount and character of the work performed and materials furnished by
the Contractor, or from making a determination that the work or materials do not conform in fact
to the requirements of the Contract Documents. Notwithstanding any such measurement,
estimate or certificate, or payment made in accordance therewith, the County shall not be
precluded or estopped from recovering from the Contractor and its Surety(ies) such damages as
the County may sustain by reason of the Contractor's failure to comply or to have complied with
the terms of the Contract Documents.
5.7 Nonconforming Work
5.7.1 Rejection, Removal, and Replacement of Work
Subject to the County's right, in its sole discretion, to Accept or Reject Nonconforming Work,
the Contractor shall remove and replace rejected Nonconforming Work so as to conform with the
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PROJECT No. B2400039
Book 1 - Contract
requirements of the Contract Documents, at the Contractor's expense and without any time
extension; and the Contractor shall promptly take all action necessary to prevent similar
deficiencies from occurring in the future. The fact that the County may not have discovered the
Nonconforming Work shall not constitute an Acceptance of such Nonconforming Work. If the
Contractor fails to correct any Nonconforming Work within five days of receipt of notice from
the County requesting correction (or, for Nonconforming Work which cannot be corrected within
five days, if the Contractor fails to provide to the County a schedule for correcting any such
Nonconforming Work Approved by the County within such five-day period, begin correction
within such five-day period and thereafter diligently prosecute such correction in accordance
with such Approved schedule to completion), then the County may cause the Nonconforming
Work to be remedied or removed and replaced, and may deduct the cost of doing so from any
moneys due or to become due the Contractor and/or obtain reimbursement from the Contractor
for such cost.
S. 7.2 Nonconforming Work Pay Adjustment
The County may, in its sole discretion, Accept any Nonconforming Work without requiring it to
be fully corrected, and shall be entitled to a pay adjustment (or reimbursement of a portion of the
Contract Price, if applicable). In such event, the County shall be entitled to reimbursement of a
portion of the Contract Price. In certain events, however, it may not be possible for the
Nonconforming Work to be made to conform to the requirements of the Contract Documents,
including, but not limited to, the Contractor's failure to perform required items during a required
time period. In general, the pay adjustment (or reimbursement) shall equal, at the County's
election: (i) the amount allocated to such Work in the Contract Schedule; (ii) the Contractor's
cost savings associated with its failure to perform the Work in accordance with the Contract
requirements; or (iii) the amount deemed appropriate by the County to provide compensation for
impacts to affected parties such as future maintenance and/or other costs relating to the
Nonconforming Work. In certain events, the County shall be entitled to a pay adjustment (or
reimbursement) as expressly set forth elsewhere in the Contract Documents. Such
reimbursement shall be deducted from future payments or, if future payments are insufficient to
cover the amount owing, shall be payable to the County within 30 days after Contractor's receipt
of an invoice therefore.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
6.0 ACCESS TO SITE, UTILITY RELOCATIONS, ENVIRONMENTAL MITIGATION
6.1 Access to Site
6.1.1 Access to Right -of -Way Identified on Right -of -Way Plans
6.1.1.1 Obligation to Provide Access to Right -of -Way
The County has identified certain ROW to be used for permanent improvements included in the
Project (the "ROW Plans"), which are depicted in Book 4. The County will provide access to
the ROW identified on the ROW Plans in accordance with Book 2, Section 8.
6.1.1.2 Right -of -Way Access Requirements
Concurrently with review of the Original Baseline Schedule, the Contractor and the County shall
discuss the access requirements for the ROW identified on the ROW Plans associated with the
scheduled Activities. The Contractor and the County may agree to revise the ROW schedule set
forth in Book 2, Section 8, Appendix B in writing and enter into a no -cost Change Order. The
Contractor shall be provided access to those parcels identified on the ROW Plans in accordance
with the ROW schedule or as modified by the parties.
6.1.1.3 Delay in Providing Access
If the County at any time determines it will be unable to provide access to a particular parcel in
accordance with the ROW schedule, the County shall notify the Contractor regarding the revised
projected date for delivery of access. The Contractor shall take appropriate action to minimize
any cost and time impact and shall work around such parcel until access can be provided,
including rescheduling and re -sequencing Work so as to avoid any delay to the Project. Subject
to Section 6.1.1.4, to the extent that a delay to the Critical Path cannot be avoided due to not
providing access to a parcel(s) in accordance with the ROW schedule, such delay shall be
considered a County -Caused Delay.
6.1.1.4 Obligation to Provide Written Notice
In addition to the requirements of Section 6.1.1.3, and as a necessary condition for obtaining any
increase in the Contract Price or extension of a Completion Deadline related to the County's
delivery of access to the parcels identified on the ROW Plans, the Contractor shall provide the
County written notice within three Working Days after receipt of a revised projected date if the
lack of availability will result in an impact to the cost or schedule.
6.1.2 Access to Right -of -Way Not Identified on Right -of -Way Plans
6.1.2.1 Unidentified Right -of -Way as Result of a the County -Directed Change
Any ROW not identified on the ROW Plans that is required as the result of a Necessary Design
Change shall be the responsibility of the Contractor to obtain.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
6.1.2.2 Right -of -Way Associated with Value Engineering Change Proposal
The cost of obtaining any ROW not identified on the ROW Plans associated with a Value
Engineering Change Proposal (VECP) will be included in determining the Contract Price
adjustment under Section 12.
6.1.2.3 Preparation of Documents
Contractor shall prepare all documents described in Book 2, Section 8 and shall deliver them to
the County in sufficient time to allow review and Approval prior to the date the transfer is
scheduled to occur. Additional requirements applicable to Contractor are set forth in Book 2,
Section 8.
6.1.2.4 Reimbursement of County Costs
The Contractor shall reimburse the County for any costs (including reasonable attorneys',
accountants' and expert witness fees and costs) of acquiring any real property that is not the
County's responsibility under Sections 6.1.1.1, 6.1.2.1 or 6.1.2.2 which the Contractor
determines is necessary or advisable in order to complete the Project, including obtaining any
Temporary Easements. The County may deduct such amounts from payments otherwise owing
hereunder, or may invoice the Contractor. The Contractor shall reimburse the County for any
such amounts paid by the County within ten days after receipt of an invoice from the County
therefore.
6.1.2.5 Additional Requirements
Additional requirements applicable to the Contractor are set forth in Book 2, Section 8.
6.1.3 Failure to Have Necessary Rights of Access
If the Contractor enters any property in connection with the Project without having all necessary
rights of access, the County may, in its sole discretion, obtain consent from the landowner. The
Contractor shall be responsible for all costs incurred by the County as a result thereof, and for
Liquidated Damages as described in Section 17.1.
6.2 Utility Relocations
This Section 6.2 describes how the risk of increased costs and delays associated with the Utility
Work is allocated between the County and the Contractor through the Change Order process, and
contains certain additional terms relating to Utility Work to supplement those set forth in Book 2,
Section 7.0. The Contractor agrees that: (i) the Contract Price covers all of the Utility Work to be
furnished or performed by the Contractor described in Book 2, Section 7.0 and in this Section
6.2; and (ii) it is feasible to obtain and/or perform all necessary Utility Work (for both Public
Utilities and Private Utilities) within the time deadlines of the Contract Documents. Schedule
delays due to relocations of utilities and/or oil/gas facilities are eligible for a change order
increasing the contract time, but are not eligible for a change order increasing the contract price.
Accordingly, the Contractor shall be entitled to receive a Change Order for additional costs and
delays associated with the Utility Work only as permitted by this Section 6.2 or in circumstances
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
for which such a Change Order is otherwise permitted under Section 13 (such as for County -
Directed Changes which increase the Utility Work to be furnished or performed by the
Contractor). A deductive Change Order for reductions in the Utility Work to be furnished or
performed by the Contractor shall be issued only in circumstances for which a deductive Change
Order is otherwise permitted under Section 13. Notwithstanding the foregoing, the Contractor's
entitlement to any Change Orders pursuant to Section 13 relating to the Utility Work shall be
subject to any applicable limitations and restrictions set forth in this Section 6.2, and the
Contractor's entitlement to any Change Orders pursuant to this Section 6.2 shall be subject to the
limitations, restrictions and procedures set forth in Section 13.
6.2.2 Reserved
6.2.3 Betterments and Requested Relocations
Utility Betterments and Requested Relocations may be added to the Work pursuant to this
Section 6.2.3 and Book 2, Section 7.
6.2.3.1 Procedure
Any Utility Owners may request the County to permit the Contractor to perform work relating to
Betterments or Requested Relocations as a part of the Work, at the Utility Owner's expense. If
the County Approves any such request, the Contractor will have the obligation to perform such
work, with the right to receive additional payment and, if applicable, an extension of the
Completion Deadline as provided in Section 6.2.4.2. The price charged by the Contractor for
such Betterment or Requested Relocation shall be either a lump sum amount negotiated with the
Utility Owner or determined on a time and materials cost basis as specified below. Any
extension of the Completion Deadline or Contract Price increase requested for any Betterment or
Requested Relocation shall be subject to the requirements of Sections 6 and 13, as applicable.
The County will Approve the addition of a Betterment or Requested Relocation to the scope of
the Work under this Section 6 only if: (i) the Utility Owner has agreed to the addition of such
Betterment or Requested Relocation to the Work; (ii) such Betterment is compatible with the
Project; (iii) the Utility Owner has agreed to reimburse the Contractor for all the costs thereof;
(iv) the Utility Owner has agreed as to the method (negotiated lump sum amount, or time and
materials cost basis) of pricing such Work; and (v) it is feasible to separate the cost/pricing of the
Betterment or Requested Relocation work from that for any related Utility Work being furnished
or performed by the Contractor. The Contractor shall provide the County with such information,
analyses and certificates as may be requested by the County in connection with its Approval.
Any change in the scope of the Work pursuant to this Section 6.2.3 shall not be considered a
County -Directed Change.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
6.2.4 Utility Delays
6.2.4.1 Allocation of Risk
If aggregate Utility Delays caused by an individual Utility Owner exceed 5 days, and the
Completion Deadline is affected thereby, the Contractor may be entitled to an extension of the
Completion Deadline as provided in Section 6.2.4.2.
6.2.4.2 Conditions to Extensions for Utility Delays
With respect to each Utility Delay claimed by the Contractor, the Contractor shall not be entitled
to any extension of the Completion Deadline unless all of the following conditions are satisfied:
1. The Contractor has provided evidence reasonably satisfactory to the County that: (i) the
Contractor has fulfilled its obligation under the applicable Utility Relocation
Agreement(s) to coordinate with the Utility Owner to prevent or reduce such delays; and
(ii) the Contractor has otherwise made diligent efforts to obtain the timely cooperation of
the Utility Owner but has been unable to obtain such timely cooperation.
2. If the Contractor is responsible for the Relocation, the Contractor has provided a
reasonable Relocation plan to the Utility Owner and the Contractor has obtained, or is in
a position to timely obtain, all applicable approvals, authorizations, certifications,
consents, exemptions, filings, leases, licenses, permits, registrations, options, and/or
rulings required by or with any Governmental Person in order to design and construct
such Relocations.
3. No circumstances exist which have delayed or are delaying the affected Relocation, other
than those which fit within the definition of a Utility Delay.
6.2.4.2.1 Delay Damages
The Contractor shall be entitled to a delay and/or disruption contract time extensionfor Utility
Delays only in the circumstances described in, and to the extent provided, in Section 13.5.2.
6.2.5 Certain Obligations of Contractor
6.2.5.1 Multiple Relocations of the Same Utility
The Contractor shall avoid multiple relocations of the same Utility, whether by the Utility Owner
or by the Contractor. Accordingly, after a Utility has been relocated once in order to
accommodate the Project based on the Contractor's design, the Contractor shall be responsible
for all costs incurred by either the Contractor or the Utility Owner in order to subsequently
relocate such Utility to accommodate the Project. If the Utility Owner performs such subsequent
Relocation, then the Contractor shall reimburse the Utility Owner for such subsequent relocation.
If the Contractor performs such subsequent Relocation, then the Contractor shall not receive any
extension of the Completion Deadline or increase in the Contract Price on account of the
performance of such subsequent Relocation.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
6.2.5.2 Minimizing the County's Reimbursement Obligation
In designing and constructing the Project, the Contractor shall take all reasonable steps to
minimize costs to the Utility Owners under the Utility Relocation Agreements, to the extent
practicable and otherwise consistent with other requirements of the Contract Documents.
6.2.6 Additional Restrictions on Change Orders
In addition to all of the other requirements and limitations contained in Section 13 and the
Addendums, the entitlement of the Contractor to any Change Order under this Section 6.2 shall
be subject to the restrictions and limitations set forth in this Section 6.2.
6.2.6.1 Burden of Proof
For Relocations, the Contractor shall bear the burden of proving that the Relocation cannot
reasonably be avoided.
6.2.6.2 Coordination Costs
The Contractor shall not be entitled to an increase in the Contract Price for any costs of
coordinating with Utility Owners or for assisting the County in coordinating with Utility Owners.
6.2.6.3 Voluntary Action by Contractor
If the Contractor elects to make payments to Utility Owners or to undertake any other efforts
which are not required by the terms of the Contract Documents, the Contractor shall not be
entitled to a Change Order in connection therewith. The Contractor shall promptly notify the
County of the terms of any such arrangements.
6.3 Environmental Compliance
In performance of the Work, the Contractor shall comply with all requirements of all applicable
Environmental Laws and Governmental Approvals issued there under, whether obtained by the
County or the Contractor. The Contractor acknowledges and agrees that it will be responsible
for all fines and penalties that may be assessed in connection with any failure to comply with
such requirements.
6.3.1 Mitigation Requirements
The Contractor shall perform all environmental mitigation measures (which term shall be
deemed to include all requirements of the Environmental Approvals and similar Governmental
Approvals, regardless of whether such requirements would be considered to fall within a strict
definition of the term) for the Project except the environmental mitigation measures the County
has agreed to perform or provide. The Contract Price includes compensation for the Contractor's
performance of all such mitigation measures and for performance of all mitigation measures
arising from New Environmental Approvals which Section 6.3 designates as the Contractor's
responsibility as well as the cost of all Activities to be performed by the Contractor as described
in Book 2, Section 5.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
6.3.2 New Environmental Approvals
6.3.2.1 Approvals to be Obtained by the County
The County shall be responsible for obtaining any New Environmental Approvals necessitated
by a Necessary Design Change or Force Majeure event. The Contractor shall provide support
services to the County with respect to obtaining any such New Environmental Approval. Any
Change Order covering a Necessary Design Change shall include compensation to the Contractor
for any changes in the Work (including performance of additional mitigation measures but
excluding performance of such support services) resulting from such New Environmental
Approvals, as well as any time extension necessitated by the Necessary Design Change, subject
to the conditions and limitations contained in Section 13.
6.3.2.2 Approvals to be Obtained by Contractor
If a New Environmental Approval becomes necessary for any reason other than those specified
in Section 6.3.2.1, the Contractor shall be fully responsible for obtaining the New Environmental
Approval and any other environmental approvals that may be necessary, and for all requirements
resulting there from, as well as for any litigation arising in connection therewith. The County
will reasonably assist the Contractor in obtaining any New Environmental Approvals. If the
New Environmental Approval is associated with a VECP or Negotiated Change, the costs of
obtaining and complying with the terms of the New Environmental Approval shall be considered
in determining the Contract Price adjustment under Section 12.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
7.0 EQUAL EMPLOYMENT OPPORTUNITY; SUBCONTRACTS; LABOR
7.1 Equal Employment Opportunity
7.1.1 Equal Employment Opportunity Policy
The Contractor confirms that it has an equal employment opportunity policy ensuring equal
employment opportunity without regard to race, color, national origin, sex, age, religion or
handicap; and that it maintains no employee facilities segregated on the basis of race, color,
religion or national origin.
7.1.2 Non -Discrimination
The Contractor shall comply with all applicable Legal Requirements that enumerate unlawful
employment practices including discrimination because of race, religion, color, gender, age,
disability, or national origin, and that define actions required for affirmative action and
minority/disadvantaged business programs. The Contractor shall not discriminate against any
employee or applicant for employment because of race, color, national origin, religion, sex, age
or handicap. The Contractor shall take affirmative action to ensure that applicants are employed,
and that employees are treated during employment without regard to their race, color, national
origin, religion, gender, age or handicap. Such action shall include the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and selection for training, including apprenticeship.
The Contractor agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
7.1.3 Inclusion in Subcontracts
The Contractor shall include Sections 7.1.1 and 7.1.2 in every Subcontract over $10,000
(including purchase orders), and shall require that they be included in all Subcontracts over
$10,000 at lower tiers, so that such provisions will be binding upon each Subcontractor.
7.2 Limitation on Subcontracted Work
The Submitter (Prime) shall perform at least 30 percent of the construction Work, and the Major
Participant responsible for design shall perform at least 30 percent of the design Work. The
percentage of construction Work sublet shall be determined by dividing the total dollar value of
the Subcontracts for construction Work, excluding any Subcontracts with Major Participants but
including any lower tier Subcontracts through Major Participants, by the portion of the Contract
Price allocable to construction Work (as determined by the County). The percentage of design
Work sublet shall be determined by dividing the total dollar value of the lower tier design
Subcontracts by the total dollar value of the prime design Subcontract(s); (i.e. the Subcontract(s)
between the Contractor and the Major Participant(s) responsible for design).
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Weld County, Colorado
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Book 1 - Contract
73 Subcontracting Requirements
The Contractor shall comply with all applicable requirements of the Contract Documents relating
to Subcontracts, and shall ensure that its Subcontractors (at all tiers) comply with all applicable
requirements of the Contract Documents relating to subcontracting. The Contractor shall not
add, delete, or change the role of, any Major Participant without the prior written Approval of the
County.
7.4 Assignment of Subcontract Rights
Each Subcontract shall provide that, pursuant to terms in form and substance satisfactory to the
County: (i) the County is a third party beneficiary of the Subcontract and shall have the right to
enforce all terms of the Subcontract for its own benefit; and (ii) all guarantees and warranties,
express and implied, shall inure to the benefit of the County as well as the Contractor. Any
acceptance of assignment of a Subcontract from the County, its successor(s), or assign(s) shall
not operate to make the assignee(s) responsible or liable for any breach of the Subcontract by the
Contractor or for any amounts due and owning under the Subcontract included in an invoice paid
by the County.
7.5 Subcontract Terms
Each Subcontract shall include terms and conditions sufficient to ensure compliance by the
Subcontractor with all applicable requirements of the Contract Documents, and shall include
provisions addressing the following requirements as well as any other terms that are specifically
required by the Contract Documents to be included therein:
1. The Subcontract shall provide for retainage to be withheld and released in accordance
with CDOT Standard Specifications for Road and Bridge Construction, No. 109.06.
2. Each Subcontract, with the exception of any Subcontract for Project Management,
Public Information, Quality Control, and Warranty Work, shall include terms that are
substantially similar to those terms required by Sections 5.1, 5.2, 5.3, 5.4, 7.1, 7.2, 7.4,
9.2.1, 13.7, 14, 15, 19, 22, 23, 24.6, specifically including an agreement by the
Subcontractor to be joined in any dispute
resolution proceeding pursuant to Section 19 if such joinder is reasonably necessary to
resolve the dispute; and each Subcontract other than Subcontracts with Suppliers shall
include terms that are substantially similar to those contained in Sections 2.2(5), 2.2(6),
2.2(9), 10.4, 21.2 (as appropriate), 21.3, 21.4, and 23.
7.6 Subcontract Data
The Contractor shall notify the County, in writing, of the name and address of, and licenses held
by, each Subcontractor (excluding Suppliers), as soon as the potential Subcontractor has been
identified by Contractor, but in no event less than 14 days prior to the scheduled initiation of
Work by such proposed Subcontractor. The Contractor shall provide the County with a list of its
Subcontractors (including Suppliers) from time to time upon request by the County; shall allow
the County access to all Subcontracts and records regarding Subcontracts; and shall deliver to the
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Weld County, Colorado
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Book 1 - Contract
County, within ten days after execution, copies of all Subcontracts with Major Subcontractors
and, within ten days after receipt of a request from the County, copies of all other Subcontracts.
7.7 Responsibility for Work by Subcontractors
Notwithstanding any Subcontract or agreement with any Subcontractor, the Contractor shall be
fully responsible for all of the Work. the County shall not be bound by any Subcontract, and no
Subcontract shall include a provision purporting to bind the County.
7.8 Key Personnel Proposed to Work on Project
7.8.1 Key Personnel
Exhibit C hereto identifies certain key positions for the Project. The Contractor may, with the
County's approval, add key positions at no cost to the County. the County shall have the right to
review the qualifications and character of each individual to be assigned to a key position
(including personnel employed by Subcontractors) and to Approve or disapprove use of such key
person in such key position prior to the commencement of any Work by such individual or
during the prosecution of the Work. The Contractor shall notify the County in writing of any
proposed changes in any Key Personnel, and shall include a resume of proposed Key Personnel.
The Contractor shall not change any Key Personnel without the prior written Approval of the
County.
7.8.2 Representations, Warranties, and Covenants
The Contractor acknowledges and agrees that the award of the Contract by the County to the
Contractor was based, in large part, on the qualifications and experience of the personnel listed
in the Statement of Qualifications and the Proposal, and the Contractor's commitment that such
individuals would be available to undertake and perform the Work. The Contractor represents,
warrants and covenants that such individuals are available for and will fulfill the roles identified
for them in the Statement of Qualifications and the Proposal in connection with the Work.
Unless otherwise agreed to by the County in writing, individuals filling Key Personnel roles shall
devote a sufficient amount of their time for the applicable role with respect to the prosecution
and performance of the Work and the Contractor shall document such commitment to the
County's satisfaction upon the County's request.
7.9 Character of Workers
All individuals performing the Work shall have the skill and experience and any licenses or
certifications required to perform the Work assigned to them. If the County determines in its
sole discretion that any Person employed by the Contractor or by any Subcontractor is not
performing the Work properly and skillfully, or who is intemperate or disorderly, then, at the
written request of the County, the Contractor or such Subcontractor shall remove such Person
from the Project and such Person shall not be re-employed on the Project without the prior
Approval of the County in its sole discretion. If the Contractor or the Subcontractor fails to
remove such Person(s) or fails to furnish skilled and experienced personnel for the proper
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
performance of the Work, then the County may, in its sole discretion, suspend the affected
portion of the Work by delivery of written notice of such suspension to the Contractor. Such
suspension shall in no way relieve the Contractor of any obligation contained in the Contract
Documents or entitle the Contractor to a Change Order. Once compliance is achieved, the
Contractor shall be entitled to and shall promptly resume the Work.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
8.0 SURETY BONDS
The Contractor shall provide to the County and maintain at all times during the term of the
Contract Security for performance of the Work as described below (or other assurance
satisfactory to the County in its sole discretion). Each bond required hereunder shall be provided
by a Surety licensed as surety and qualified to do business in the State. The Contractor shall
obtain the bonds from a surety with an investment grade rating to ensure the completion of the
Contract or shall be required to obtain a letter of credit from a bank or other financial institution
with an investment grade rating of A or better to ensue completion of the Contract upon terms
acceptable to the Weld County.
8.1 Proposal Bond
The Contractor is not required to provide a proposal bond for this qualification based selection
process.
8.2 Performance Bond
The Contractor has provided the Performance Bond in the form attached to the ITP as Form O in
the amount of the Fixed Contract Price.
8.3 Payment Bond
The Contractor has provided the Payment Bond in the form attached to the ITP as Form N in the
amount of the Fixed Contract Price Price. The Payment Bond shall be released one year after the
later to occur of Final Acceptance or the County's receipt of satisfactory evidence that all
Persons performing any of the Work of the type described in C.R.S. § 38-26-105 and § 38-26-
106 have been fully paid.
8.4 Utility Work
The Utility Work furnished or performed by the Contractor hereunder may have bond
requirements separate from the bond required pursuant to Section 8.0. All cost estimates
required to be provided under the Contract Documents with respect to Utility Work furnished or
performed by the Contractor shall include the cost of bond premiums.
8.5 No Relief of Liability
Notwithstanding any other requirements of the Contract Documents, performance by a Surety of
any of the obligations of the Contractor shall not relieve the Contractor of any of its obligations
hereunder.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
9.0 INSURANCE
9.1 General Insurance Requirements
9.1.1 Evidence of Insurance
The Contractor shall provide evidence of insurance in a form acceptable to Weld County as
proof of Compliance for all insurance requirements contained in this Section. For all Work that
occurs on the Project Weld County shall be named as an additional insured on the insurance
policies, except for the workers' compensation and professional liability policies. These
insurance requirements are applicable to the Contractor only. When the Contractor requires a
Subcontractor to obtain insurance coverage, the types and minimum limits of coverage may be
different than those required in this Section 9. The evidence of insurance shall provide for ten
Days' written notice of cancellation for nonpayment of premiums, or 45 days' written notice of
cancellation for any other reason, including nonrenewal. Evidence of the insurance that contains
the phrase "will endeavor to" preceding all references to provisions of notice by the insurance
company shall be unacceptable. A Certificate of Insurance indicating certain specified
amendments and attachments shall be acceptable, but Weld County reserves the right to request a
complete certified copy of the policy, at Weld County's sole discretion. Contractor shall not
commence any Work until it has complied with these insurance requirements and Weld County
has approved the evidence of insurance.
9.1.2 A.M. Best Rating
All insurance companies providing policies obtained to satisfy the insurance requirements must
have an A.M. Best rating of A- VII or better.
9.1.3 Full Force and Effect
The commercial general liability, excess (umbrella) liability, contractor's pollution liability and
professional liability insurance coverage requirements will remain in full force and effect
throughout the term of all warranties or as otherwise required by the Contract Documents,
whichever is greater.
9.1.4 No Recourse
There shall be no recourse against Weld County for payment of premiums or other amounts with
respect to the insurance provided by the Contractor, or for deductibles under these policies. This
provision does not affect any rights the Contractor is entitled to.
9.1.5 Indemnification
The insurance coverage provided hereunder shall support, but is not intended to limit, the
Contractor's indemnification obligations.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
9.2 Contractor Provided Insurance
The Contractor shall procure, at its own expense, insurance acceptable to Weld County, as
described herein, and shall maintain such insurance, as specified herein, in accordance with the
requirements stated in this section, or as otherwise Approved by Weld County at its sole
discretion.
9.2.1 Workers' Compensation and Employer's Liability Coverage
The Contractor shall provide Workers' Compensation coverage that is in compliance with all
Legal Requirements and Employer's Liability with minimum limits of $500,000 by disease each
person, $500,000 by disease aggregate, and $500,000 each person by accident.
9.2.2 Commercial General Liability Insurance
The Contractor shall provide Commercial General Liability broad form coverage for Bodily
Injury, Property Damage, Personal Injury and Advertising Liability written on an occurrence
form that shall be no less comprehensive or more restrictive than the coverage provided by
Insurance Services Office (ISO) for CG 00 01 10 93.
1. Limits of liability. General liability:
A. $1 million - each occurrence.
B. $2 million - general aggregate (annually). The general aggregate limit shall not be
diminished by claims on other projects.
C. $2 million - products/completed operations liability.
D. $50,000 - any one fire
2. Such insurance shall include, by its terms or appropriate endorsements, Bodily Injury,
Property Damage, Legal liability, Personal Injury, Blanket Contractual, Independent
Contractors, Premises, Operations and Products and Completed Operations. Such insurance shall
also include blanket coverage for Explosion, Collapse, and Underground
(XCU) hazards.
3. Products and Completed Operations coverage shall be continued for a minimum of one year
from Project Completion.
4. Weld County shall be an additional insured with respect to liability arising out of acts or
omissions of the Contractor or its Subcontractors, whether on or off the Site.
9.2.3 Automobile Liability Insurance
The Contractor shall provide commercial automobile liability insurance covering all
owned/leased, non -owned and hired vehicles used in the performance of Work, both on and off
the Site, including loading and unloading.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
The following limits of liability and other requirements shall apply:
1. $1 million combined single limit for bodily injury and property damage liability.
2. Coverage shall be provided on ISO form number CA 00 01 10 01 or equivalent.
3. The policy will include uninsured and underinsured, in compliance with Colorado law.
4. The policy shall be endorsed to include Motor Carrier Act endorsement — Hazardous Materials
Cleanup (MCS-90), if applicable.
9.2.4 Excess (Umbrella) Liability Insurance
The Contractor shall provide Umbrella or Excess Liability insurance with limits of not less than
$1 million per occurrence and $1 million annual aggregate which will provide bodily injury,
• personal injury and property damage liability at least as broad as the primary coverages set forth
above, including Employer's Liability, Commercial General Liability and Commercial
Automobile Liability, as set forth in this Section.
9.2.5 Contractor's Pollution Legal Liability Coverage
The Contractor shall provide pollution legal liability coverage for the Project. The following
limits and conditions shall apply:
1. The limit of liability per occurrence shall be at least $1 million and the total Project aggregate
shall be at least $5 million.
2. Weld County shall be named as an additional insured (to the extent commercially available as
determined by Weld County).
3. The policy form shall be written on an occurrence -based form. The extended reporting period
must be at least 24 months following completion of the Work.
4. Weld County reserves the right to purchase a Project -specific policy in lieu of the Contractor's
pollution legal liability policy.
9.2.6 Professional Liability Insurance
The Contractor or Sub consultant shall provide Project Professional Liability Coverage for the
protection of all design professionals associated with the Project as follows:
1. Limits of Liability will be at least $1 million per claim and an aggregate of at least $1 million.
Insurance does not have to be purchased on a project specific basis
2. The policy will have a one-year extended reporting period from the Final Acceptance
Date with respect to all events that occurred, but were not reported, during the term of the policy.
3. The policy shall protect against any negligent act, error or omission arising out of design or
engineering including environmental design or consulting with respect to the Project.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
4. The policy shall have a retroactive date of no later than the date the first design and/or
engineering Activities have been conducted by the design professionals and contractors
associated with the Project.
5. Contractor shall provide insurance for construction management activities in the amounts
required in this Section 9.2.6, per the Contractor's usual business practices including, but not
limited to, purchasing a construction management professional policy or an errors and omissions
policy.
If the Sub consultant provides Project Professional Liability Coverage, Contractors shall confirm
that all requirements of this section have been met prior to the start of design Work.
9.2.7 Railroad Protective Insurance
Not required as part of this project.
9.2.8 Builder's Risk
Unless otherwise expressly stated in the Supplementary General Conditions the Contractor shall
purchase and maintain, in a company or companies lawfully authorized to do business in the
jurisdiction in which the Project is located, property insurance written on a builder's risk "all-
risk" or equivalent policy form in the amount of the Probable Maximum Loss value at all times
including any subsequent contract modifications and cost of materials supplied or installed by
others, comprising total value for the entire Project at the site on a replacement cost basis without
optional deductibles. Such property insurance shall be maintained, unless otherwise provided in
the Contract Documents or otherwise agreed to in writing by all persons and entities who are
beneficiaries of such insurance, until final payment has been made or until no person or entity
other than Weld County has an insurable interest in the property or the Date of Notice specified
on the Notice of Acceptance or whichever is later.
This insurance shall include interests of Weld County, the Contractor, and Subcontractors in the
Project as named insureds.
All associated deductibles shall be the responsibility of the Contractor. Such policy may have a
deductible clause but not to exceed one hundred thousand dollars ($100,000) and the deductible
for Work in a one hundred (100) year flood plain may not exceed two hundred and fifty thousand
dollars ($250,000).
Property insurance shall be on an "all risk" or equivalent policy form and shall include, without
limitation, insurance against the perils of fire (with extended coverage) and physical loss or
damage including, without duplication of coverage, theft, vandalism, malicious mischief,
collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and
debris, removal including demolition occasioned by enforcement of any applicable legal
requirements, and shall cover reasonable compensation for Architectural and Engineering
Services and expenses required as a result of such insured loss.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Contractor shall maintain Builders Risk coverage including partial use by Weld County. The
Contractor shall waive all rights of subrogation as regards to Weld County and Weld County, its
officials, its officers, its agents and its employees, all while acting within the scope and course of
their employment. For damages caused by fire or other causes of loss to the extent covered by
property insurance obtained pursuant to this Section or other property insurance applicable to the
Work. The Contractor shall require all Subcontractors at any tier to similarly waive all such
rights of subrogation and shall expressly include such a waiver in all subcontracts.
Upon request by Weld County, the amount of such insurance shall be increased to include the
cost of any additional Work to be done on the Project, or materials or equipment to be
incorporated in the Project, under other independent contracts let or to be let. In such event, the
Contractor shall be reimbursed for this cost at its share of the insurance in the same ratio as the
ratio of the insurance represented by such independent contracts let or to be let to the total
insurance carried.
Weld County shall have the power to adjust or settle any loss. Unless it is agreed otherwise, all
monies received shall be applied first on rebuilding or repairing the destroyed or injured Work.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
10.0 RISK OF LOSS
10.1 Site Security
The Contractor shall provide appropriate Security for the Site, including securing any buildings
from entry, and shall take all reasonable precautions and provide protection to prevent damage,
injury or loss to the Work and materials and equipment to be incorporated therein, as well as all
other property at the Site, whether owned by the Contractor, the County, or any other Person.
The Contractor shall at all times keep the Site in a neat and clean condition, including
performing litter removal, removal of graffiti, and weed control.
10.2 Maintenance and Repair of Work and On -Site Property
10.2.1 Responsibility of Contractor
The Contractor shall maintain, rebuild, repair, restore, or replace all Work (including Design
Documents, Released for Construction Documents, As -Built Documents, materials, equipment,
supplies, and maintenance equipment which are purchased for permanent installation in, or for
use during construction of, the Project, regardless of whether the County has title thereto under
the Contract Documents) that is injured or damaged prior to the date of acceptance of
maintenance liability by the County or third parties as specified in Section 10.2.2. All such work
shall be at no additional cost to the County except to the extent that the County is responsible for
such costs as provided in Section 13. The Contractor shall also have full responsibility during
such period for rebuilding, repairing and restoring all other property at the Site, whether owned
by the Contractor, the County or any other Person. Additional requirements regarding
maintenance of highways during construction are set forth in Book 2, Section 18.
10.2.2 Relief from Liability for Maintenance
Effective as of the date on which Project Completion occurs, the County shall be considered to
have Accepted maintenance liability for all elements of the Project which have been Accepted.
All remaining elements of the Project shall be considered Accepted for maintenance purposes as
of the date on which Final Acceptance occurs. Notwithstanding the foregoing, all elements of
the Work, which will be owned by Persons other than the County (such as Utility facilities) will
be considered accepted for purposes of maintenance responsibility only as of the date of
acceptance of maintenance responsibilities by such Persons.
10.2.3 Landscape
Notwithstanding anything to the contrary in Sections 10.2.1. or 10.2.2, requirements regarding
landscape establishment are set forth in Book 2, Section 17.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
10.2.4 Wetland Maintenance
Notwithstanding anything to the contrary in Sections 10.2.1. or 10.2.2, requirements regarding
maintenance of wetlands are set forth in Book 2, Section 5 (Environmental Requirements).
103 Damage to Off -Site Property
The Contractor shall take all reasonable precautions and provide protection to prevent damage,
injury, or loss to property adjacent to the Site or likely to be affected by the Work. The
Contractor shall restore damaged, injured or lost property caused by an act or omission of any
Contractor -Related Entity to a condition similar or equal to that existing before the damage,
injury or loss occurred.
10.4 Third Party Agreements
The Contractor shall construct the Project in accordance with the third party agreements listed in
Book 2, Section 6.
10.5 Title
The Contractor warrants that it owns, or will own, and has, or will have, good and marketable
title to all materials, equipment, tools and supplies furnished, or to be furnished, by it and its
Subcontractors that become part of the Project or are purchased for the County for the operation,
maintenance, or repair thereof, free and clear of all Liens. Title to all of such materials,
equipment, tools and supplies which shall have been delivered to the Site shall pass to the
County, free and clear of all Liens, upon the sooner of: (i) incorporation into the Project; or
(ii) payment by the County to the Contractor of invoiced amounts pertaining thereto.
Notwithstanding any such passage of title, and subject to Section 10.1, the Contractor shall retain
sole care, custody and control of such materials, equipment, tools and supplies, and shall exercise
due care with respect thereto as part of the Work until Final Acceptance or until the Contractor is
removed from the Project.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
11.0 PAYMENT
11.1 Contract Price
11.1.1 Contract Price
As full compensation for the Work and all other obligations to be performed by the Contractor
under the Contract Documents, the County shall pay to the Contractor an amount not to
exceed $25,000,000.00 (the Guaranteed Maximum Price of twenty five million dollars herein
referred to as the "Contract Price"). The Contract Price may be increased or decreased only
by a Change Order issued in accordance with Section 13 or by a Contract amendment.
11.1.2 Items Included in Contract Price
The Contractor acknowledges and agrees that, subject only to the Contractor's rights under
Section 13, the Contract Price includes:
1. Performance of each and every portion of the Work, including all Additional Requested
Elements and portions thereof included as part of the Contractor's Proposal.
2. All designs, equipment, materials, labor, insurance and bond premiums, home office,
jobsite and other overhead, profit and services relating to the Contractor's performance of
its obligations under the Contract Documents (including all Work, Warranties,
equipment, materials, labor and services provided by Subcontractors and intellectual
property rights necessary to perform the Work).
3. The cost of obtaining all Governmental Approvals (except for approvals which are the
responsibility of the County, as specifically provided elsewhere in the Contract
Documents).
4. All costs of compliance with and maintenance of the Governmental Approvals and
compliance with Legal Requirements.
5. Payment of any taxes, duties, and permit and other fees and/or royalties imposed with
respect to the Work and any equipment, materials, labor, or services included therein.
6. All Utility Work associated with Public and Private Utilities as required by Section 6.2
and Book 2, Section 7.
7. All fines, penalties and damage payments to others as Contractor is obligated to pay
herein.
11.1.3 (Removed)
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
11.2 Invoices and Payment
Requirements relating to invoicing are set forth in Book 2, Section 2. Within seven days after
receipt by the County of each final invoice, the County shall pay the Contractor the amount of
the invoice Approved for payment less any amounts that the County is entitled to withhold.
11.3 Limitations on Payment
In no event shall the County have any obligation to pay the Contractor any amount which would
result in: (i) payment for any Activity in excess of the value of the Activity times the completion
percentage of such Activity; or (ii) aggregate payments hereunder in excess of: (i) the overall
completion percentage for the Project times the Contract Price; or (ii) the payment caps
described herein. the County does not have the obligation to pay the Contractor for any
Nonconforming Work.
11.3.1 Requirement to Provide Corrected Monthly Update
After Approval of the Original Baseline Schedule, no payment will be processed or owing to the
Contractor for Work performed during any period not covered by the Accepted current Monthly
Progress Schedule.
11.3.2 (Removed)
11.3.3 Unincorporated Materials
The County will not pay for materials associated with a progressed WBS Activity prior to their
incorporation into the Project, except under the circumstances described in Section 11.3.3.
11.3.3.1 Exeptions-Stockpiled Structural Steel/Delivery to Site/Materials Produced for
Project
Materials submitted for Stockpile payment shall be delivered to the Site or delivered to the
Contractor and promptly stored by the Contractor in storage Approved by the County. In
addition, payment for stockpiled structural steel is subject to the provisions of the CDOT
Specifications. Girders, sign structures, wall panels and structural steel that have not been
delivered to or adjacent to the Site will be eligible for payment only if they were specifically
manufactured or produced for the Project, and then only after being irrevocably assigned to the
County. As a condition to inclusion of such materials in any invoice, the Contractor shall submit
certified bills using the form attached hereto as Exhibit H. Payment will not be made when the
invoice value of such materials, as determined by the County, amounts to less than $25,000 or if
materials are to be stored less than 30 days.
11.3.3.2 Title to Materials
Materials that meet the requirements in Section 11.3.3.1 and for which payment is made shall
become the property of the County upon the County making payment thereof. Payment for such
materials will not constitute final acceptance of such materials. The Contractor shall submit with
its invoice for such materials a letter of vested interest in the form attached hereto as Exhibit I.
At the County's request, the Contractor at its own expense shall promptly execute, acknowledge
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
and deliver to the County actual bills of sale or other instruments in a form acceptable to the
County, conveying and assuring to the County title to such materials included in any invoice,
free and clear of all Liens. The Contractor at its own expense shall conspicuously mark such
materials as the property of the County, shall not permit such materials to become commingled
with non -County -owned property and shall take such other steps, if any, as the County may
require or regard as necessary to vest title to such materials in the County free and clear of Liens.
The required invoice, billing, title, or assignment documents, furnished by the Contractor, shall
contain complete material description and identification data.
11.3.3.3 Deductions
The amount shown in an invoice for material, which is subsequently lost, damaged or
unsatisfactory will be deducted from succeeding invoices until the material is repaired or
replaced at the Contractor's expens. In case any Supplier claims against the Contractor remain
(for materials so paid for) unsatisfied for more than 30 days following issuance of payment to the
Contractor, the applicable payment may be canceled on the next invoice.
11.3.3.4 Not to Exceed Amount
Payment for material furnished and delivered as indicated in this Section 11.3.3 will not exceed
the amount paid by the Contractor as evidenced by a bill of sale supported by paid invoice, or 75
percent of the in -place price, whichever is less.
11.3.4 Materials Ineligible for Payment
11.3.4.1 Equipment
The County will not pay directly for equipment costs. Payment for equipment, whether new,
used or rented, and to the extent not included in the mobilization payments under Section 11.4,
will be allocated to and paid for as part of the Activities with which the equipment is associated,
in a manner which is consistent with the requirements of Section 13.7.
11.3.4.2 Perishable Materials
The County will make no partial payment on living or perishable materials until incorporated as
specified in the Contract.
11.3.4.3 Contractor Election
The County will make no payment for materials brought onto the Site at the Contractor's
election that may be incorporated into the Project such as fuels, supplies, metal decking forms,
ties or supplies used to improve efficiency of operations.
11.3.5 Nonconforming Work
The County will make no payment for Nonconforming Work, except as provided under
Section 5.7.
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Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
11.4 Mobilization
11.4.1 Mobilization Amount
The actual amount of premiums paid by the Contractor for the Payment and Performance Bonds
and for insurance required to be provided by the Contractor under Section 9 may be invoiced at
any time after issuance of NTP. In addition, the Contractor shall be entitled to mobilization
payments.
11.5 Retainage; Deductions
11.5.1 Retainage
The County shall withhold funds (the "Retainage") from each payment to be made to the
Contractor under this Section 11 in accordance with CDOT Standard Specifications for Road and
Bridge Construction, No. 109.06 as modified by the Project Special Provisions. The amount
retained will be in effect until such time as Final Acceptance is made by the County.
11.5.2 Substitution of Acceptable Securities
The Contractor shall have the right to substitute acceptable securities pursuant to C.R.S. § 24-91-
105 for the Retainage, provided that no such substitution shall be accepted until the form of such
securities and the surety therefore have been Approved by the County.
11.5.3 Deductions
In addition to the Retainage, the County may deduct from any amounts otherwise owing to
Contractor, including each monthly progress payment and the final payment, the following:
1. Any accrued losses, liability, Liquidated Damages or other damages for which Contractor
is responsible hereunder.
2. The estimated cost of remedying any Nonconforming Work or otherwise remedying any
breach of contract by Contractor.
3. The amount of any outstanding claim under C.R.S. § 38-26-107 or 24-91-103 relating to
the Work.
4. The estimated value of the amount for Work that the Contractor is obligated to perform
under the Contract, which the Contractor has failed to perform.
5. Any other sums which the County is entitled to recover from the Contractor under the
terms of the Contract.
The County's failure to deduct from a progress payment any amount, which the County is
entitled to recover from the Contractor under the Contract, shall not constitute a waiver of the
County's right to such amounts.
11.6 Final Payment
Final payment will be made in accordance with this Section 11.6.
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11.6.1 Application for Final Payment
On or about the date of delivery of its Affidavit of Final Completion, the Contractor shall prepare
and submit a proposed Application for Final Payment to the County showing the proposed total
amount due the Contractor.
In addition to meeting all other requirements for invoices hereunder, the Application for Final
Payment shall list all outstanding or pending Potential Change Order (PCO) Notices and all
existing or threatened claims by the County, Subcontractors, laborers, Suppliers, Utility Owners
or other third parties relating to the Project, including any notices filed or to be filed with the
Affidavit of Final Completion, stating the amount at issue associated with each such notice. The
Application for Final Payment shall be accompanied by: (i) complete and legally effective
releases or waivers of Liens and stop notices satisfactory to the County, from all Persons legally
eligible to file Liens and stop notices in connection with the Work; (ii) consent of Surety(ies) to
final payment; (iii) the release and affidavit required by Section 11.6.2; and (iv) such other
documentation as the County may reasonably require. Prior applications and payments shall be
subject to correction in the proposed Application for Final Payment. PCO Notices filed
concurrently with the Application for Final Payment must be otherwise timely and meet all
requirements under Sections 13 and 19. If a Subcontractor or Supplier refuses to furnish a
release or waiver required by the County, the Contractor may furnish a bond satisfactory to the
County to indemnify the County against such claim. If such claim remains unsatisfied after
payments are made, and is not bonded over as provided in the previous sentence, Contractor
shall promptly pay to the County all money that the County may be compelled to pay in
discharging such claim, including all costs and attorneys' fees.
The County will review the Contractor's proposed Application for Final Payment, and changes
or corrections will be forwarded to the Contractor for correction. If no changes or corrections
are required, the County will Approve the Application for Final Payment.
11.6.2 Payment
11.6 2.1 Release and Affidavit as Condition to Final Payment
As a condition to its obligation to make payment to the Contractor based on the Application for
Final Payment, the County shall have received an executed release from the Contractor for any
and all claims arising from the Work, releasing and waiving any claims against the Indemnified
Parties, excluding only the retention amounts set forth in Section 11.5, and those matters
identified in any PCO Notices listed as outstanding in the Application for Final Payment, and
otherwise satisfactory in form and content to the County.
The release shall be accompanied by an affidavit from the Contractor certifying:
1. That it has resolved any claims made by Subcontractors, Utility Owners, and others
against the Contractor or the Project.
2. That it has no reason to believe that any Person has a valid claim against the Contractor
or the Project which has not been communicated in writing by the Contractor to the
County as of the date of the certificate.
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3. That all guarantees and warranties are in full force and effect.
The release and the affidavit shall survive final payment. The payment amount will be reduced
by any amounts deductible under Section 11.5.
11.6.2.2 Partial Estimates and Payments Subject to Correction
All prior partial estimates and payments shall be subject to correction in the final payment.
11.6 2.3 Waiver of Claims
Contractor's acceptance of final payment shall constitute a waiver of affirmative Claims by
Contractor except those previously made in writing and identified by Contractor in accordance
with Section 11.6.1 as unsettled at the time of final payment.
11.7 Payments to Subcontractors
11.7.1 Prompt Payment
The Contractor is responsible for ensuring that all subcontractors and suppliers at every tier are
promptly paid. All subcontractors and suppliers must be paid in accordance with CDOT
Standard Specifications for Road and Bridge Construction, No. 109.06(e).
11.7.2 Release of Retainage
The Contractor shall release retainage in accordance with CDOT Standard Specifications for
Road and Bridge Construction, No. 109.06.
11.8 Disputes
Subject to the County's right to withhold from progress payments any amounts in dispute, and
except as expressly stated otherwise in this Section, any disagreement between the County and
the Contractor relating to this Section 11 shall be subject to Section 19. Failure by the County to
pay any amount in dispute shall not alleviate, diminish, or modify in any respect the Contractor's
obligation to perform under the Contract Documents, including the Contractor's obligation to
achieve Final Acceptance in accordance with the Contract Documents, and the Contractor shall
not cease or slow down performance under the Contract Documents on account of any such
amount in dispute. The Contractor shall proceed as directed by the County pending resolution of
the dispute. Upon resolution of such dispute, each party shall promptly pay to the other any
amount owing. Nothing in this Section is intended to affect the Contractor's rights pursuant to
Section 15.16.1.
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12.0 VALUE ENGINEERING AND NEGOTIATED CHANGES
The parties desire for the Contractor to have significant flexibility in determining how best to
deliver the Project within the parameters established by the Contract Documents.
Notwithstanding the foregoing, the County's Approval is required with respect to any proposed
changes in the Contract Requirements. This Section 12 sets forth the requirements applicable to
requests for modifications in Contract Requirements submitted by the Contractor. Changes in
Contract Requirements may be submitted as Value Engineering Change Proposals (VECPs)
provided the request qualifies as a VECP as provided herein. The parties may agree upon the use
of a Negotiated Change Order, however, whether the proposed change is a VECP or other
change.
12.1 Value Engineering Change Proposals
The Contractor is encouraged to submit VECPs whenever it identifies potential savings. The
County may also request the Contractor to develop and submit a specific VECP. The Contractor
has the right to refuse to consider such County -initiated VECPs.
12.1.1 Definition of Value Engineering Change Proposal
A VECP is a proposal developed and documented by the Contractor which:
1. Would modify or require a change in any of the Contract Requirements in order to be
implemented (including any changes to the Basic Configuration); and
2. Reduces the cost of the Project without impairing essential functions or characteristics of
the Project (including service life, economy of operation, ease of maintenance,
desirability and safety) as determined by the County in its sole discretion, and provided
that it is not based solely upon a change in quantities, performance or reliability or a
relaxation of the Contract requirements.
12.1.2 Required Information
At a minimum, the following information shall be submitted by the Contractor with each VECP:
1. A statement that the submission is a VECP, a narrative description of the proposed
change, the advantages and disadvantages of the proposed change and the justification for
changes in function or characteristics and the effect the proposed change has on
performance.
2. Description of the existing Contract requirements, which are involved in the proposed
change.
3. Identification of the Contract requirements (with reference to specific Sections), which
must be changed if the VECP is Approved.
4. A description of any previous use or tests of the proposal and the conditions and results.
If the proposal was previously submitted on another County project, indicate the date,
contract number and the action taken by the County.
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5. Date or time by which a Change Order adopting the VECP must be issued in order to
obtain the maximum cost reduction, noting any effect on the Contract Schedule.
6. A complete cost analysis including current pricing for the existing Contract requirements
compared to the Contractor's cost estimate of the proposed changes.
The Contractor shall provide any additional information requested by the County in a timely
manner. Additional information could include results of field investigations and surveys, design
computations, and field change sheets.
12.1.3 County Review and Approval or Rejection
12.1.3.1 Review of Value Engineering Change Proposals
Upon receipt of a VECP, the County will process it, but will not be liable for any delay in acting
upon any proposal submitted pursuant to this Section 12.1. The Contractor may withdraw all or
part of any VECP at any time prior to Approval by the County.
12.1.3.2 Approval/Rejection of Value Engineering Change Proposals
The County may Approve, in its sole discretion, in whole or in part, by Change Order, any
VECP submitted. Until a Change Order is issued on a VECP, the Contractor shall remain
obligated to perform in accordance with the Contract Documents. The decision of the County as
to rejection or Approval of any VECP shall be at the sole discretion of the County and shall be
final and not subject to partnering, dispute resolution, or appeal. The Contractor shall have no
claim for any additional costs or delays resulting from the delayed processing or rejection of a
VECP, including development costs, loss of anticipated profits, or increased material or labor
costs.
12.1.4 Disputes Regarding Applicability of Value Engineering Change Proposals
Within 30 days following a request from the County for a VECP regarding any Work that the
County believes should have properly been submitted as a VECP, the Contractor shall deliver a
VECP to the County meeting all of the requirements of this Section 12.1, but may specify that
the VECP is delivered under protest. In such case, either party shall have the right to submit the
question of the Contractor's entitlement to proceed without an Approved VECP to dispute
resolution. If a determination is ultimately made that the Contractor is not entitled to proceed
without an Approved VECP, the County shall be entitled to a credit against the Contract Price as
provided in Section 12.1.5. If a determination is ultimately made that the Contractor is entitled to
proceed without an Approved VECP, the VECP shall be deemed withdrawn and have no effect.
12.1.5 Contract Price Adjustment
If the County Approves a VECP submitted by the Contractor pursuant to this Section 12, the
Contract Price shall be adjusted in accordance with the following:
12.1.5.1 Estimated Net Savings
The term "estimated net savings", as used in this Section 12.1, shall mean: (i) the difference
between the cost of performing the Work according to the Contract Documents using current
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estimates and the actual cost to perform it according to the proposed change; less (ii) the costs of
studying and preparing the VECP as proven by the Contractor and Approved by the County in
accordance with the Change Order procedures set forth herein; less (iii) any additional costs
incurred by the County (including costs relating to any Relocations and ROW and
implementation costs) resulting from the VECP. The Contractor's profit shall not be considered
part of the cost.
12.1.5.2 Collateral and Future Savings
Except as specified in Section 12.1.5.4, the Contractor is not entitled to share in either collateral
or future contract savings. The term "collateral savings" means those measurable net reductions
in the County's costs resulting from the VECP, including costs of maintenance by the County,
logistics, and the County -furnished property.
The term "future contract savings" shall mean reductions in the cost of performance of future
construction contracts resulting from a VECP submitted by the Contractor.
12.1.5.3 Price Adjustment
Subject to Sections 12.1.5.4 and 12.1.5.5, the Contract Price shall be reduced by an amount equal
to the sum of: (i) 100 percent of any additional costs incurred by the County resulting from the
VECP; plus (ii) 50 percent of the estimated net savings.
12.1.5.4 Value Engineering Change Proposals Affecting Right -of -Way Plans
Not Aplicable
12.2 Negotiated Changes
The County may, in its sole discretion, Approve any changes in the Contract Requirements that
do not qualify as VECPs. Such changes shall be referred to as "Negotiated Changes." The
County may agree to any share of the cost savings in the Contract Price for Negotiated Changes.
12.3 Use of Value Engineering Change Proposals and Negotiated Changes by the
County
All Approved or disapproved VECPs and Negotiated Changes will become the property of the
County, and shall contain no restrictions imposed by the Contractor on their use or disclosure.
The County retains the right to use, duplicate, and disclose in whole or in part any data necessary
for the utilization of the proposal on any other or subsequent projects without any obligation to
the Contractor. This provision is not intended to deny rights provided by law with respect to
patented materials or processes.
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that the Work is within the original scope of the Work, the Contractor shall proceed with the
Work as directed but shall have the right pursuant to Section 13.3 to request that the County
issue a Change Order with respect thereto).
13.1.1.3 Performance of Changed or Extra Work
As a condition precedent to the Contractor's right to receive additional payment or an extension
of a Completion Deadline for changed or extra work, the Contractor shall have received either a
Directive Letter from the County stating that it is issued pursuant to Section 13.1.1.2 or a Change
Order for such work executed by the County. To the extent that the Contractor undertakes any
such work without receiving a Directive Letter or Change Order executed by the County, the
Contractor shall be deemed to have performed such work voluntarily and shall not be entitled to
a Change Order in connection therewith. In addition, the Contractor may be required to remove
or otherwise undo any such work, at its sole cost.
13.1.2 Directive Letter as Condition Precedent to Claim that County -Directed Change
Occurred
In addition to provision of a Potential Change Order (PCO) Notice and subsequent Change Order
request pursuant to Section 13.3, receipt of a Directive Letter from the County is a condition
precedent to the Contractor's right to claim that a County -Directed Change has occurred,
provided that no Directive Letter shall be required for alleged County -Directed Changes directly
attributable to delays caused by bad faith actions, active interference, gross negligence or
comparable tortious conduct by the County. The fact that a Directive Letter was issued by the
County shall not be considered evidence that in fact a County -Directed Change occurred. The
determination whether a County -Directed Change in fact occurred shall be based on an analysis
of the original Contract Document requirements and a determination whether the Directive Letter
in fact constituted a change in those requirements. The foregoing requirements shall not imply
that a Directive Letter would be required in order for the Contractor to have the right to receive
compensation for Work within its original scope for which additional compensation is
specifically allowed under this Section 13 (such as for Relocation of previously misidentified
underground Utilities, if a Change Order is allowed therefore pursuant to Section 6.2).
13.1.3 Changes in Law
Contractor shall be entitled to an increase in the Contract Price for any change in a Legal
Requirement, change in the judicial interpretation of a Legal Requirement, or adoption of any
new Legal Requirement, which is materially inconsistent with Legal Requirements in effect on
the Proposal Due Date (excluding any such change or new Legal Requirement which was passed
or adopted but not yet effective as of the Proposal Due Date), and which: (i) requires a material
modification in the Work; (ii) requires the Contractor to obtain a State or federal environmental
approval not previously required for the Project; (iii) eliminates existing tax exemptions or
increases applicable sales taxes; or (iv) specifically targets the Project or the Contractor. The
County shall be entitled to a decrease in the Contract Price for any change in Legal Requirements
that reduces the cost of the Work, if and to the extent that the change: (i) allows a material
modification in the design of the Project resulting in a net cost savings; or (ii) reduces the
requirements of complying with environmental approvals.
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13.2 Procedure for County Initiated Change Orders
This Section 13.2 concerns Change Orders issued by the County following a Request for Change
Proposal and Change Orders unilaterally issued by the County.
13.2.1 Request for Change Proposal (RCP)
13.2.1.1 Issuance of Request
If the County desires to issue a County -Directed Change or to evaluate whether to initiate such a
change, then the County may, at its discretion, issue a Request for Change Proposal (RCP).
13.2.1.2 Initial Consultation
Within seven days after the Contractor's receipt of an RCP, the County and the Contractor shall
consult to define the proposed scope of the change. Within seven days after the initial
consultation, the County and the Contractor shall consult concerning an estimated rough order of
magnitude cost (ROM) cost and time impacts, if any. The Contractor shall provide data
regarding such matters as requested by the County.
13.2.1.3 Notification by the County
Within seven days after the ROM consultation meeting and provision of any data as described in
Section 13.2.1.2, The County shall notify the Contractor whether the County:
1. Wishes to issue a Change Order.
2. Wishes to request the Contractor to prepare a Change Order form as discussed at the
meeting.
3. No longer wishes to issue a Change Order.
The County may at any time, in its sole discretion, require the Contractor to provide two
alternative Change Order forms, one of which shall provide for a time extension if applicable and
any additional costs permitted hereunder, and the other of which shall show all Acceleration
Costs associated with meeting the original Completion Deadlines, as well as any additional costs
permitted hereunder.
13.2.1.4 Submittal of Change Order Form
If requested by the County, the Contractor shall, within 21 days after receipt of the notification
described in Section 13.2.1.3, prepare and submit to the County for Approval a Change Order
form for the requested change, complying with all applicable requirements of Section 13.4, and
incorporating all requests made by the County. The Contractor shall bear the cost of developing
the Change Order form, including any modifications thereto requested by the County, except that
costs of design and engineering work required for preparation of plans or exhibits necessary to
the Change Order form and pre -authorized by the County shall be included in the Change Order
as reimbursable items. If the Change Order is Approved, the design and engineering costs will
be included within the Change Order, otherwise, they shall be separately reimbursed through a
separate Change Order.
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13.2.1.5 Order To Proceed
If the County and the Contractor agree that a change in the requirements relating to the Work has
occurred but disagree as to whether the change justifies additional compensation or time or
disagree as to the amount of any change to be made to the Contract Price or a Completion
Deadline, the County may, in its sole discretion, order the Contractor to proceed with the
performance of the Work in question notwithstanding such disagreement. Such order may, at the
County's option, be in the form of:
1. Time and Materials Change Order as provided in Section 13.7; or
2. Directive Letter as described in Section 13.1.1.2.
13.2.2 Unilateral Change Orders
The County may issue a Change Order at any time, regardless of whether it has issued a Request
for Change Proposal. Any such Change Order shall state that the Contractor shall be entitled to
compensation in accordance with Section 13.7 for the additional Work required thereby. For
deductive unilateral Change Orders, the Change Order may contain a price deduction deemed
appropriate by the County, and the Contractor shall have the right to dispute the amount of such
price deduction in accordance with Section 19.
13.2.3 Options
The County's issuance of a Notice -to -Proceed with any Option by the number of Days after NTP
defined in Table 13.2.3 shall be considered direction to Contractor to prepare a Change Order
which shall add the Option work to the scope of the Work for the Option price.
TABLE 13.2.3
ISSUANCE OF NTPS FOR OPTIONS
Option
Description
# of Days after
NTP
1
ARE #1 (Concrete Paving Alternative)
7
13.3 Procedure for Contractor Requested Change Orders
13.3.1 Eligible Changes
The Contractor's entitlement to a Change Order for eligible changes is subject to the restrictions
and limitations contained in this Section 13.3.
13.3.1.1 Contract Price Increase
The Contractor may request a Change Order to increase the Contract Price, subject to certain
limitations with respect to delay and disruption damages as specified in Section 13.5.2, only for
increased costs in the Work as follows:
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1. Additional costs directly attributable to additional Work resulting from County -Directed
Changes.
2. Additional costs directly attributable to County -Caused Delays.
3. Additional costs directly attributable to Necessary Design Changes, to the extent
permitted in Section 13.8.
4. Additional costs directly attributable to Differing Site Conditions considered
extraordinary circumstance(s), to the extent provided in Section 13.9.
5. Certain additional costs relating to Hazardous Substances, as described in Section 13.11,
to the extent provided therein.
6. Certain additional costs relating to material errors in the ROW, as described in
Section 13.12, to the extent provided therein.
7. Additional costs directly attributable to uncovering, removing, and restoring Work, to the
extent provided in Section 5.5.3.
8(a). Additional costs directly attributable to Force Majeure events, to the extent provided in
Section 13.10. For purposes of Contractor's entitlement to costs directly attributable to
Force Majeure events, the term "Force Majeure" shall mean any of the following events
(provided such events are beyond the control of Contractor and are not due to an act or
omission of Contractor or Contractor -Related Entity) which materially and adversely
affects Contractor's obligations hereunder and which event (or the effects of which
event) could not have been avoided or prevented by due diligence and use of reasonable
efforts by Contractor:
(i) A tornado or an earthquake;
(ii) Any rebellion, war, riot, act of sabotage, terrorism, or civil commotion;
(iii) The discovery at, near, or on the Site of any archaeological, paleontological or
cultural resources or any biological resources (which term shall be deemed to
mean any threatened or endangered species, raptors or eagles), provided that the
existence of such resources was not disclosed in the RFP Documents;
(iv) The suspension, termination, interruption, denial, failure to obtain, nonrenewal or
amendment of any Environmental Approval, except as otherwise provided in
Section 6.3;
Any change in a Legal Requirement, change in the judicial interpretation of a
Legal Requirement, or adoption of any new Legal Requirement, which is
materially inconsistent with Legal Requirements in effect on the Proposal Due
Date (excluding any such change or new Legal Requirement which was passed or
adopted but not yet effective as of the Proposal Due Date), and which: (i) requires
a material modification in the Project Work; (ii) requires the Contractor to obtain
a State or federal environmental approval not previously required for the Project;
or (iii) specifically targets the Project or the Contractor; and
(vi) Any lawsuit seeking to restrain, enjoin, challenge, or delay construction of the
Project or the granting or renewal of any Governmental Approval of the Project,
(v)
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except to the extent that: (i) the risk of such lawsuit has been assumed by
Contractor under Section 6.3; or (ii) the lawsuit otherwise arises out of any act,
omission or breach of obligation of Contractor, a Subcontractor or any person for
whom Contractor is contractually or legally liable.
8(b).For purposes of Contractor's entitlement to costs directly attributable to Force Majeure
events, the term "Force Majeure" specifically excludes from its definition the following
matters, which might otherwise be considered Force Majeure:
(1)
Fire or other physical destruction or damage, including lightning, explosion,
drought, rain, flood not caused by the above -described events, hurricane, storm or
action of the elements, or other acts of God;
(ii) Except as provided in Subsection 9(a) above, explosion or malicious or other acts
by Contractor or a Contractor -Related Entity intended to cause loss or damage or
other similar occurrence;
(iii) Strike, labor dispute, work slowdown, work stoppage, secondary boycott,
walkout, or other similar occurrence;
(iv) The suspension, termination, interruption, denial or failure to obtain, or
nonrenewal of any Governmental Approval other than an Environmental
Approval, unless such event is the result of a lawsuit as described in
Section 9(a)(v) above;
(v) The adoption or repeal of, or change in, a Legal Requirement which was passed
but not yet effective as of the Proposal Due Date or which increases Contractor's
costs but does not change the obligations to be performed by Contractor (except
to the extent provided in Section 13.1.3);
(vi) Any lawsuit relating to any New Environmental Approval, which is Contractor's
risk under Section 6.3;
(vii) Any Force Majeure event under a Utility Agreement unless the claimed Force
Majeure event also constitutes Force Majeure as provided in Subsection 9(a)
above;
(viii) Any Utility Delays; and
(ix) All other matters not caused by the County or beyond the control of the County
and not listed in Section 9(a) above.
13.3.1.2 Time Extension
The Contractor may request a Change Order to extend a Completion Deadline only for the
following delays in the Critical Path:
1. County -Caused Delays.
2. Delays directly attributable to Necessary Design Changes, to the extent permitted by
Section 13.8.
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3. Delays directly attributable to Differing Site Conditions considered extraordinary
circumstances, to the extent permitted by Section 13.9.
4. Certain delays relating to Utility Work, as described in Section 6.2, to the extent
permitted therein.
5. Certain delays relating to Hazardous Substances, as described in Section 13.11, to the
extent permitted therein.
6. Certain delays relating to material errors in the ROW Plans, to the extent permitted by
Section 13.12.
7. Delays directly attributable to Force Majeure events, to the extent permitted by Section
13.10. For purposes of Contractor's entitlement to a time extension hereunder, the term
"Force Majeure" shall mean a loss, injury, or damage to the Work due to unforeseeable
causes beyond the control of the Contractor or Contractor -Related Entities, including but
not limited to acts of God, such as earthquake, flood, tornado, high winds, or other
cataclysmic phenomenon of nature, or acts of the public enemy or of governmental
authorities.
13.3.2 Conditions Precedent
The requirements set forth in this Section 13.3.2 constitute conditions precedent to the
Contractor's entitlement to request and receive a Change Order in all circumstances except those
involving a request for a price increase under Section 11.1.3. The Contractor agrees that the
filing of PCO Notices and subsequent filing of requests for Change Orders with the County
pursuant to this Section 13.3.2 are necessary in order to begin the administrative process for
Contractor -requested Change Orders. The Contractor understands that it shall be forever barred
from recovering against the County under this Section 13 if it fails to give notice of any act, or
failure to act, by the County or any of its representatives or the happening of any event, thing or
occurrence pursuant to a proper PCO Notice, and thereafter complies with the remaining
requirements of this Section 13.3.
13.3.2.1 Delivery of Potential Change Order (PCO) Notice
The Contractor shall deliver to the County written notice ("PCO Notice") stating that an event or
situation has occurred within the scope of Section 13.3.1.1 and/or 13.3.1.2 and shall state which
subsection thereof is applicable. The first notice shall be labeled "PCO No. 1" and subsequent
notices shall be numbered sequentially. Any notice regarding a situation involving a Necessary
Design Change shall specifically state that it involves such a change.
13.3.2.1.1 Importance of Prompt Delivery
Each PCO Notice shall be delivered as promptly as possible after the occurrence of such event or
situation. If any PCO Notice is delivered later than ten days after the Contractor first discovered
(or should have discovered in the exercise of reasonable prudence) the occurrence which is
described therein, the Contractor shall be deemed to have waived the right to collect any and all
costs incurred prior to the date of delivery of the PCO Notice, and shall be deemed to have
waived the right to seek an extension of any Completion Deadline with respect to any delay in
the Critical Path which accrued prior to the date of delivery of the written notice. Furthermore, if
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any PCO Notice concerns any condition or material described in Section 5.3, the Contractor shall
be deemed to have waived the right to collect any and all costs incurred in connection therewith
to the extent that the County is not afforded the opportunity to inspect such material or condition
before it is disturbed. The Contractor's failure to provide a PCO Notice within 30 days after the
Contractor first discovered (or should have discovered in the exercise of reasonable prudence)
the occurrence of a given event or situation shall preclude the Contractor from any relief, unless
the Contractor can show, based on a preponderance of the evidence that: (i) the County was not
materially prejudiced by the lack of notice; or (ii) the County's designated representative
specified in accordance with Section 24.10 had actual knowledge (including all items (i) through
(v) of Section 13.3.2.1.2), prior to the expiration of the 30 -Day period, of the event or situation
and that the Contractor believed it was entitled to a Change Order with respect thereto. A PCO
Notice shall be deemed delivered only if it fully conforms to the requirements of
Section 13.3.2.1.2.
13.3.2.1.2 Contents of PCO Notice
The PCO Notice shall: (i) state in detail the facts underlying the potential Change Order, the
reasons why the Contractor believes additional compensation or time will or may be due and the
date of occurrence; (ii) state in detail the basis that the work is not required by the Contract, if
applicable; (iii) identify particular elements of Contract performance for which additional
compensation may be sought under this Section 13; (vi) identify any potential Critical Path
impacts; and (v) provide an estimate of the time within which a response to the notice is required
to minimize cost, delay, or disruption of performance.
13.3.2.1.3 Notices Under Other Contract Provisions
The written notification under Section 5.3 may also serve as a PCO Notice provided it meets the
requirements for PCO Notices.
13.3.2.1.4 Failure to Provide Information
Any adjustments made to the Contract shall not include increased costs or time extensions for
delay resulting from the Contractor's failure to provide requested additional information under
this Section 13.3.2.1.
13.3.2.2 Delivery of Requests for Change Orders (RCO)
The Contractor shall deliver all requests for Change Orders under this Section 13.3 to the County
within 30 days after delivery of the PCO Notice. The County may require design and
construction costs to be covered by separate Change Order requests. If the Contractor requests a
time extension, then the County, in its sole discretion, may require the Contractor to provide two
alternative Change Order requests, one of which shall provide for a time extension and any
additional costs permitted hereunder, and the other of which shall show all Acceleration Costs
associated with meeting the original Completion Deadlines, as well as any additional costs
permitted hereunder.
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13.3.2.3 Importance of Timely Delivery
The Contractor acknowledges and agrees that, due to the limited availability of funds for the
Project, timely delivery of notification of such events and situations and requests for Change
Orders and updates thereto are of vital importance to the County. The County is relying on the
Contractor to evaluate, promptly upon the occurrence of any event or situation, whether the event
or situation will affect schedule or costs and, if so, whether the Contractor believes a time
extension and/or price increase is required hereunder. If an event or situation occurs which may
affect the Contract Price or a Completion Deadline, the County will evaluate the situation and
determine whether it wishes to make any changes to the definition of the Project so as to bring it
within the County's funding and time restraints.
The following matters (among others) shall be considered in determining whether the County has
been prejudiced by the Contractor's failure to provide timely notice:
1. The effect of the delay on alternatives available to the County (that is, a comparison of
alternatives which are available at the time notice was actually given and alternatives
which would have been available had notice been given within ten days after occurrence
of the event or when such occurrence should have been discovered in the exercise of
reasonable prudence).
2. The impact of the delay on the County's ability to obtain and review objective
information contemporaneously with the event.
13.3.2.4 Subcontractor Claims
Prior to submission by the Contractor of any request for a Change Order to the County which is
based in whole or in part on a request by a Subcontractor to the Contractor for a price increase or
time extension under its Subcontract, the Contractor shall have reviewed all claims by the
Subcontractor which constitute the basis for the request for Change Order and determined in
good faith that each such claim is justified hereunder and that the Contractor is justified in
requesting an increase in the Contract Price and/or change in Completion Deadlines in the
amounts specified in the request for Change Order. Each request for Change Order involving
Subcontractor Work shall include a sworn certification in form acceptable to the County signed
by the Contractor's Project Manager stating that the Contractor has investigated the basis for the
Subcontractor's claims and has determined that all such claims are justified as to entitlement and
amount of money and/or time requested and has no reason to believe and does not believe that
the factual basis for the Subcontractor's claim is falsely represented. Any request for Change
Order involving Subcontractor Work shall be considered incomplete if it is not accompanied by
such certification.
13.3.3 Performance of Disputed Work
If the County refuses to issue a Change Order based on the Contractor's request, the Contractor
shall nevertheless perform all work as specified in an appropriate Directive Letter, with the right
to submit the issue of entitlement to a Change Order to dispute resolution in accordance with
Section 19. The Contractor shall maintain and deliver to the County, upon request,
contemporaneous records, meeting the requirements of Section 13.7.7, for all work performed
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which the Contractor believes constitutes extra work, until all Disputes regarding entitlement or
cost of such work are resolved.
13.4 Contents of Change Orders
13.4.1 Form of Change Order
Each Change Order form and request for Change Order shall meet all applicable requirements of
this Section 13 and shall include a Cost Analysis to be prepared in the form attached as Exhibit
G. The completed and/or modified Work Order Form described in Section 6.2 shall be
considered an appropriate form, where applicable.
13.4.2 Scope of Work, Cost Estimate, Delay Analysis, and Information Regarding Change
The Contractor shall prepare a scope of work, cost estimate, impacted delay analysis, if any and
other information as required by this Section 13.4.2 for each Change Order form and request for
Change Order.
13.4.2.1 Scope of Work
The scope of work shall describe in detail satisfactory to the County all Activities associated
with the Change Order, including a description of additions, deletions and modifications to the
existing Contract requirements.
13.4.2.2 Cost Estimate
The cost estimate shall set out the estimated costs in such a way that a fair evaluation can be
made. It shall include a breakdown for labor, materials, equipment, overhead (which includes all
indirect costs) and profit, unless the County agrees otherwise. The estimate shall include costs
allowable under Section 13.5.2, if any. If the work is to be performed by Subcontractors and if
the work is sufficiently defined to obtain Subcontractor quotes, the Contractor shall obtain quotes
(with breakdowns showing cost of labor, materials, equipment, overhead and profit) on the
Subcontractor's stationery and shall include such quotes as back-up for the Contractor's
estimate. No mark-up shall be allowed in excess of the amounts allowed under Sections 13.5.2
and 13.7.
13.4.2.3 Impacted Delay Analysis
If the Contractor claims that such event, situation or change affects the Critical Path, it shall
provide an impacted delay analysis indicating all Activities represented or affected by the
change, with Activity numbers, durations, predecessor and successor Activities, resources and
cost, and with a narrative report, in a form satisfactory to the County, which compares the
proposed new schedule to the Original Baseline Schedule, Current Baseline Schedule or Revised
Baseline Schedule, as appropriate. Except as otherwise provided in this Section, the impacted
delay analysis shall only modify the Activities, which have been impacted by the event which
justifies the extension. The Contractor may reschedule Activities not otherwise affected by the
event, in order to take advantage of additional Float available as a result of the requested time
extension. Any such rescheduling shall be reflected in the impacted delay analysis.
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13.4.2.4 Other Supporting Documentation
The Contractor shall provide such other supporting documentation as may be required by the
County.
13.4.3 Justification
All requests for Change Orders shall include a narrative justification therefore, detailing all
causes of the proposed change, making specific reference to the applicable provisions of this
Section 13 which permit a Change Order to be issued, and describing the data and documents
which establish the necessity of such proposed change.
13.4.4 Contractor Representation
Each Change Order (other than Change Orders issued unilaterally by the County) shall contain a
sworn certification in form acceptable to the County by the Contractor that the amount of time
and/or compensation requested includes all known and anticipated impacts or amounts, direct,
indirect and consequential, which may be incurred as a result of the event or matter giving rise to
such proposed change and that the Contractor has no reason to believe and does not believe that
the factual basis for the Change Order is falsely represented.
13.4.5 Incomplete Change Orders
Each request for Change Order provided under Section 13.3 shall meet all requirements set forth
in this Section 13.4; provided that if any such requirements cannot be met due to the nature of
the occurrence, the Contractor shall provide an incomplete request for Change Order, which
shall:
1. Comply with all requirements capable of being met.
2. Include a list of requirements, which are not fulfilled together with an explanation
reasonably satisfactory to the County stating why such requirements cannot be met.
3. Provide such information regarding projected impact on the Critical Path as is requested
by the County.
4. In all events include sufficient detail to ascertain the basis for the proposed Change Order
and for any price increase associated therewith, to the extent such amount is then
ascertainable.
The Contractor shall furnish, when requested by the County, such further information and details
as may be required to determine the facts or contentions involved. The Contractor agrees that it
shall give the County access to any and all of the Contractor's books, records, and other
materials relating to the Work, and shall cause its Subcontractors to do the same, so that the
County can investigate the basis for such proposed Change Order. The Contractor shall provide
the County with a monthly update to all outstanding incomplete requests for Change Orders,
describing the status of all previously unfulfilled requirements and stating any changes in
projections previously delivered to the County, time expenditures to date and time anticipated for
completion of the Activities for which the time extension is claimed. The County may reject the
Contractor's claim at any point in the process. Once a complete request for Change Order is
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provided, the County's failure to respond thereto within 14 days of delivery of the request shall
be deemed a rejection of such request. Although the County intends to review incomplete
Change Orders for the purposes described in Section 13.3, the County shall have no obligation to
review the backup associated with any request for Change Order until a complete request for
Change Order is provided.
13.5 Certain Limitations
13.5.1 Limitation on Contract Price Increases
Any increase in the Contract Price allowed hereunder shall exclude:
1. Costs caused by the breach of contract or fault or negligence, or act or failure to act of
any Contractor -Related Entity.
2. Costs, which could reasonably have been avoided by the Contractor -Related Entity,
including by resequencing, reallocating, or redeploying its forces to other portions of the
Work or to other activities unrelated to the Work (including any additional costs
reasonably incurred in connection with such reallocation or redeployment).
3. Costs for any rejected Work which failed to meet the requirements of the Contract
Documents and any necessary remedial Work.
13.5.2 Limitation on Acceleration Costs; Delay and Disruption Damages
13.5.2.1 Acceleration Costs; Delay, and Disruption Damages
Acceleration Costs shall be compensable hereunder only with respect to Change Orders issued
by the County as an alternative to allowing an extension of a Completion Deadline as
contemplated by Sections 13.2 and 13.3.2.2. Delay and disruption damages shall be
compensable hereunder only in the case of a delay which qualifies as a County -Caused Delay to
the extent that it entitles the Contractor to an extension of a Completion Deadline. Costs of
rearranging the Contractor's work plan not associated with an extension of a Completion
Deadline shall not be compensable hereunder.
13.5.2.2 Other Limitations
Delay and disruption damages shall be limited to direct costs directly attributable to the delays
described in Section 13.5.2.1 and mark-ups thereon in accordance with Section 13.7 and any
additional field office and jobsite overhead costs incurred by the Contractor directly attributable
to such delays. In addition, before the Contractor may obtain any increase in the Contract Price
to compensate for any delay and disruption damages or Acceleration Costs, the Contractor shall
have demonstrated to the County's satisfaction that:
1. Its schedule, which defines the affected Critical Path in fact sets forth a reasonable
method for completion of the Work.
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2. The change in the Work or other event or situation, which is the subject of the requested
Change Order, has caused or will result in an identifiable and measurable disruption of
the Work, which impacted the Critical Path Activity.
3. The delay or disruption damage was not due to any breach of contract or fault or
negligence, or act or failure to act of any Contractor -Related Entity, and could not
reasonably have been avoided by the Contractor, including by resequencing, reallocating
or redeploying its forces to other portions of the Work or other activities unrelated to the
Work (subject to reimbursement for additional costs reasonably incurred in connection
with such reallocation or redeployment).
4. The delay for which compensation is sought is not concurrent with any other delay
excluding County -Caused Delays.
5. The Contractor has suffered or will suffer actual costs due to such delay, each of which
costs shall be documented in a manner satisfactory to the County.
13.5.3 Limitation on Time Extensions
Any extension of a Completion Deadline allowed hereunder shall exclude any delay to the extent
that it:
1. Did not impact the Critical Path affecting a Completion Deadline.
2. Was due to the fault or negligence, or act or failure to act of any Contractor -Related
Entity.
3. Could reasonably have been avoided by the Contractor, including by resequencing,
reallocating or redeploying its forces to other portions of the Work (provided that if the
request for extension involves a County -Caused Delay, the County shall have agreed, if
requested to do so, to reimburse the Contractor for its costs incurred, if any, in
resequencing, reallocating, or redeploying its forces).
The Contractor shall be required to demonstrate to the County's satisfaction that the change in
the Work or other event or situation which is the subject of the request for Change Order seeking
a change in a Completion Deadline has caused or will result in an identifiable and measurable
disruption of the Work which has impacted the Critical Path Activity affecting a Completion
Deadline.
13.6 Pricing of Change Orders
The County and the Contractor (on its own behalf and on behalf of its Subcontractors) shall
endeavor to negotiate, in good faith, a reasonable cost for each Change Order, provided that
Change Orders issued under Section 13.2.2 are not subject to negotiations.
Subject to the foregoing exceptions, in general the price of a Change Order shall be negotiated in
accordance with this Section 13.6 or shall be based on Time and Materials records pursuant to
Section 13.7.
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13.6.1 Contents
A negotiated Change Order shall specify, as applicable, scheduling requirements, time
extensions, if any, and all costs of any nature arising out of the Work covered by the Change
Order. Notwithstanding the foregoing, the parties may mutually agree to use a multiple -step
process involving issuance of a Change Order which includes an estimated design cost and
which provides for another Change Order modifying the first Change Order to be issued after a
certain design level has been reached, thus allowing a refinement and definition of the estimated
construction cost.
13.6.2 Unit Price Change Orders
The County and the Contractor may agree to negotiate unit prices for changed Work.
Measurement of unit -priced quantities will be as specified in the Change Order. Unit prices shall
be deemed to include all costs for labor, material, overhead and profit, and shall not be subject to
change regardless of any change in the estimated quantities. Unit -priced Change Orders shall
initially include an estimated increase in the Contract Price based on estimated quantities. Upon
final determination of the quantities, the County will issue a modified Change Order setting forth
the final adjustment to the Contract Price.
13.6.3 Added, Deleted, or Both Added and Deleted Work
When the Change Order adds Work to the Contractor's scope, deletes Work from the
Contractor's scope (including deletion of any Work contained in the Contract that is found to be
unnecessary), or both adds and deletes Work, the increase or decrease in the Contract Price shall
be negotiated based on estimated costs of labor, material and equipment, or shall be based on
actual costs in accordance with Section 13.7. For negotiated Change Orders, mark-ups for profit
and overhead shall be as provided in Section 13.7, and risk associated with the Work described
in the Change Order shall be addressed through an additional amount agreed to by the County
and the Contractor.
13.7 Time and Materials Change Orders
The County may at its discretion issue a Time and Materials Change Order whenever the County
determines that a Time and Materials Change Order is advisable. The Time and Materials
Change Order shall instruct the Contractor to perform the Work, indicating expressly the
intention to treat the items as changes in the Work, and setting forth the kind, character, and
limits of the Work as far as they can be ascertained, the terms under which changes to the
Contract Price will be determined and the estimated total change in the Contract Price anticipated
there under. Upon final determination of the allowable costs, the County shall issue another
Change Order modifying the prior Change Order setting forth the final adjustment to the
Contract Price. The following costs and mark-ups (and no others) shall be used for calculating
the change in the Contract Price. No direct compensation will be allowed for other
miscellaneous costs for which no specific allowance is provided in this Section 13.7.
13.7.1 Labor Costs
The cost of labor shall be separated into construction -related Work and non -construction -related
Work as described below. The use of a labor classification that would increase the extra work
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cost will not be permitted unless the Contractor establishes the necessity for such additional
costs. The cost of labor shall be calculated based on straight time for all hours worked, unless the
Contractor obtains the County's prior Approval for overtime.
13.7.1.1 Construction Labor
The cost of labor for workers used in the actual and direct performance of construction -related
Work, whether provided by the Contractor or a Subcontractor, will equal the sum of the
following: (i) Actual unburdened wages (i.e. the base wage paid to the employee exclusive of
any fringe benefits); plus (ii) a labor surcharge of 67 percent of actual unburdened wages, which
shall constitute full compensation for all state and federal payroll, unemployment and other
taxes, insurance, fringe benefits (including health insurance, retirement plans, vacation, sick
leave, and bonuses) and all other payments made to, or on behalf of, the workers, in excess of
actual wages, as well as for overhead.
13.7.1.2 Non -Construction Labor
The cost of labor for non -construction -related Work, whether provided by the Contractor or a
Subcontractor, will equal the sum of the following: (i) Actual wages (i.e. the base wage paid to
the employee exclusive of any fringe benefits); plus (ii) Actual direct costs paid to, or on behalf
of, workers (subject to audit under Section 22.3), including all state and federal payroll,
unemployment and other taxes, insurance, fringe benefits (including health insurance, retirement
plans, vacation, sick leave and bonuses) and overhead, but not to exceed 140 percent.
13.7.2 Material Costs
Material costs shall be the actual cost of all materials to be used in the performance of
construction Work including normal wastage allowance as per industry standards, subject to the
requirements set forth in this Section 13.7.2. The material prices shall be supported by valid
quotes and invoices from the Suppliers. The cost shall include applicable sales taxes, freight and
delivery charges and any allowable discounts (exclusive of machinery rentals). The County
reserves the right to Approve materials and sources of supply of materials to be furnished by the
Contractor or Subcontractors, and shall have the right to furnish such materials as it deems
advisable. The price allowed for materials shall be adjusted as follows:
13.72.1 Affiliated Source of Supply
If the materials are obtained from a supply or source owned in whole or in part by the Contractor
or a Subcontractor, the cost of such materials shall not exceed the lesser of the lowest price
charged by the Contractor or such Subcontractor (as applicable) for similar materials furnished to
other jobs or the current wholesale price for such materials delivered to the Site.
13.7.2.2 Excessive Cost
If the cost of such materials is, in the opinion of the County, excessive, then the cost allowed for
such materials shall be the lowest current wholesale price at which such materials were available,
in the quantities needed and delivered to the Site.
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13.7.2.3 Evidence of Cost
If the Contractor or any Subcontractor (as applicable) does not furnish satisfactory evidence of
the cost of such materials from the actual supplier thereof within 60 days after the date of
delivery of the material, the County reserves the right to establish the cost of such materials at
the lowest current wholesale prices at which such materials were available, in the quantities
needed and delivered to the Site.
13.7.3 Equipment
13.7.3.1 Blue Book
Contractor will be paid for the use of equipment owned or rented by Contractor or any
Subcontractor for actual use in construction of the Project at an hourly rate derived from the most
recently published Rental Rate Blue Book for Construction Equipment by Dataquest, Inc., San
Jose, California which is in effect at the time of commencement of the changed Work (the "Blue
Book").
The total hourly rates derived from the above publication are computed from equipment costs
currently in effect. The rates derived do not include costs for operating personnel. The rates
require adjustment by a Regional Factor and a Depreciation Factor found in the front of each
chapter in the Blue Book.
13.7.3.2 Rate Categories
Equipment use rates fall in the following two categories:
(a) Operating Rate: This rate applies to those hours the equipment is actually in use, includes
ownership and operating costs, and shall equal the Blue Book monthly rate adjusted for
year of manufacture divided by 176 times the Regional Factor of 1.06 plus the estimated
hourly operating costs from the Blue Book.
(b) Standby Rate: This rate applies to equipment required to be at the Site but not operating,
includes ownership costs only, and shall equal the Blue Book monthly rate adjusted for
year of manufacture divided by 176 times the Regional Factor of 1.06 times 0.5. The
duration of allowable standby time is to be Approved in writing by the County with a
maximum of eight hours per day or 40 hours in a normal week.
When the "manufacturer's rated capacity" falls between those shown in the Blue Book, the
closest rated capacity will be used, without interpolation. All rates shall be agreed upon in
writing before work is begun. Payment will not be made for pickup trucks used solely for
transportation.
13.7.3.3 Specialized Equipment
In cases where the equipment to be used is specialized in nature and is not available in
Contractor's inventory and is rented or leased from an outside agency a 10 percent allowance will
be added on the first $5,000 plus 5 percent of the balance in excess of $5,000 for overhead for all
rented or leased equipment paid for by invoices. Where the rate charged by the agency exceeds
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the rate determined by the Blue Book, the rental or lease agreement shall be submitted to the
County for Approval. The equipment operating costs from the Blue Book will be paid for rented
or leased equipment for each hour the equipment was actually used.
13.7.3.4 Rented Equipment
In those cases where the required equipment is in Contractor's or Subcontractor's available
inventory but not on the Site, the equipment may be rented from a local source. The County may
Approve rental rates for equipment obtained from local sources when such rates are within 10
percent of rates in the Blue Book. When the equipment use is of short duration (less than a
week) "move -in" and "move -out" costs for equipment owned by Contractor or Subcontractors
may be considered when comparing rental costs of equipment obtained from local sources.
This option will only be allowed when the cost of locally rented equipment would be less than
using owned equipment, including "move -in" and "move -out" charges. Such rentals must be
supported by a cost analysis indicating the method used was the least expensive. Should
equipment be rented even though it is of a type that is in Contractor's or Subcontractor's
inventory and the rental costs exceed that allowed by this paragraph, Contractor will be
reimbursed for such equipment based on the rates in the Blue Book.
13.7.3.5 Small Tools
The rates paid as above provided shall be deemed to include compensation for the cost of fuel,
oil, lubricants, supplies, small tools, necessary attachments, repairs and maintenance of all kinds,
depreciation, storage, insurance and all incidentals. Individual pieces of equipment or tools not
listed in the Blue Book and having an individual replacement value of $1,000 or less, whether or
not consumed by use, shall be considered to be small tools. Equipment rental rates not provided
by the Blue Book must be Approved by the County before the start of any Change Order Work.
13.7.3.6 Equipment Operators
Equipment operators will be paid for as stipulated in Section 13.7.1.
13.7.3.7 Condition of Equipment
All equipment shall be in good working condition and suitable for the purpose for which the
equipment is to be used.
13.7.3.8 Classification of Equipment
Unless otherwise specified, manufacturer's ratings and manufacturer -approved modifications
shall be used to classify equipment for the determination of applicable rental rates.
13.7.3.9 Computation of Time
The time to be paid for use of equipment on the Site shall be the time the equipment is in
operation on the Time and Materials Change Order Work being performed. The time shall
include the reasonable time required to move the equipment to the location of the Time and
Materials Change Order Work and return it to the original location or to another location
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requiring no more time than that required to return it to its original location. Moving time will
not be paid for if the equipment is also used at the Site other than for Time and Materials Change
Order Work. Loading and transporting costs will be allowed, in lieu of moving time, when the
equipment is moved by means other than its own power. No payment for loading and
transporting will be made if the equipment is also used at the Site other than for Time and
Materials Change Order Work. Time will be computed in half and full hours. In computing the
time for use of equipment, less than 30 minutes shall be considered one-half hour.
13.7.4 Permit Fees
The Contractor will be reimbursed for the cost of any additional permit fees payable as the result
of the change in the Work. Back-up documentation supporting each cost item for this category
shall be provided by the Contractor and Approved by the County prior to any payment
authorization being granted.
13.7 .5 Subcontracted Work
The County will pay the Contractor one, and only one, mark-up on Subcontracted Work. This
mark-up shall fully compensate the Contractor (and all Subcontractors) for administration,
general superintendence, overhead, profit and expenses not otherwise recoverable with respect to
subcontracted Work. No mark-up shall be allowed for: (i) Subcontracts with Affiliates; or
(ii) Subcontracts with Suppliers.
13.7.6 Mark -Ups
In addition to the added costs as determined above, Contractor will be paid mark-ups in
accordance with CDOT Standard Specifications for Road and Bridge Construction, No. 109.04.
13.7.7 Time and Materials Records
13.7.7.1 Collection and Maintenance of Data
The Contractor shall maintain its records in such a manner as to provide a clear distinction
between: (i) the direct cost of Work for which it is entitled (or for which it believes it is entitled)
to an increase in the Contract Price; and (ii) the costs of other operations. The Contractor shall
contemporaneously collect, record in writing, segregate, and preserve: (i) all data necessary to
determine the costs described in this Section 13.7 with respect to all Work which is the subject of
a Change Order or a requested Change Order, specifically including costs associated with design
Work as well as Utility Relocations, but specifically excluding all negotiated Change Orders
(except for lump sum Work Orders that are also Change Orders as described in Section 13.1.1.1);
and (ii) all data necessary to show the actual impact (if any) of the change on the Critical Path
affecting a Completion Deadline with respect to all Work which is the subject of a Change Order
or a proposed Change Order, if the impact on the Critical Path affecting a Completion Deadline
is in dispute. Such data shall be provided pursuant to Section 20, on forms Approved by the
County. The cost of furnishing such reports is included in the Contractor's predetermined
overhead and profit mark-ups.
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13.7.7.2 Daily Reports
The Contractor shall furnish daily, on forms Approved by the County, reports of Time and
Materials Change Order Work. The cost of furnishing such reports shall be included in the
Contractor's overhead and profit percentages. The reports shall include:
1. Name, classification, date, daily hours, total hours, rate, and extension for each worker
(including both construction and non -construction personnel) and foreman.
2. Designation, dates, daily hours, total hours, rental rate, and extension for each unit of
machinery and equipment.
3. Quantities of materials, prices and extensions.
4. Transportation costs of materials, machinery, and equipment.
5. Invoices for materials used and for transportation charges.
The reports shall also state the total costs to date for the Time and Materials Change Order Work.
13.7.7.3 Materials
If materials used on the Time and Materials Change Order Work are not specifically purchased
for the Work but are taken from the Contractor's stock, the Contractor shall furnish an affidavit
certifying that such materials were taken from the Contractor's stock, that the quantity claimed
was actually used, and that the price and transportation costs claimed represent actual costs to the
Contractor.
13.7.7.4 Reports as Basis for Payment
All Time and Materials Change Order reports shall be signed by the Contractor's Project
Manager. The County will compare its records with the Contractor's reports, make the necessary
adjustments and compile the costs of Time and Materials Change Order Work. When such
reports are agreed upon and signed by both parties, they will become the basis of payment, but
shall not preclude subsequent adjustment based on a later audit. The Contractor's (and each
Subcontractor's) cost records pertaining to Work paid for on a time and materials basis shall be
open, during all regular business hours, to inspection or audit by representatives of the County
during the life of the Contract and for a period of not less than seven years after Final
Acceptance, and the Contractor (and each Subcontractor) shall retain such records for that
period. If an audit is to be commenced more than 60 days after Final Acceptance, the Contractor
will be given a 20 -day notice of the time when such audit is to begin.
13.8 Necessary Design Changes
13.8.1 Increase in Contract Price and/or Extension of Completion Deadlines
Upon the Contractor's fulfillment of all applicable requirements of Section 13, and subject to the
limitations contained therein, if a Necessary Design Change increases the cost and/or time to
perform the Work, the Contractor shall be entitled to an increase in the Contract Price and/or an
extension of the Completion Deadlines, excluding any costs and/or time that could have been
avoided by the Contractor; provided, however, the Contractor shall not be entitled to an increase
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in the Contract Price or an extension of the Completion Deadlines in connection with Errors
resulting from Approved ATCs incorporated in the Contract Documents.
13.8.2 Decrease in Contract Price and/or Extension of Completion Deadlines
If a Necessary Design Change decreases the cost and/or time to perform the Work, the Contract
Price and/or Completion Deadlines shall be decreased accordingly.
13.8.3 Change in Basic Configuration or Temporary Configuration Resulting from Value
Engineering Change Proposal
If a VECP results in a material change in Basic Configuration or Temporary Configuration, any
cost savings from such VECP shall be shared in accordance with Section 12.
13.9 Differing Site Conditions
As a result of this project being design -build, it is the County's expectation to complete this
project with no change orders resulting in additional cost unless such change orders are initiated
by the County. Change orders will only be entertained by the County in the event of
extraordinary circumstances. It is anticipated that change orders relating to reductions in costs
and County initiated change orders may occur.
The Contractor shall not be entitled to a change order for Differing Site Conditions. By way of
example, Differing Site Conditions include but are not limited to the following (if not considered
extraordinary circumstances):
1. Encountering groundwater
2. Discovery of debris (buried or unburied) within the ROW
3. Existing asphalt thicknesses that are different than expected
4. Lack of on -site R-40 material
5. Increased costs due to relocations of utilities and/or gas/oil facilities
6. Increased costs due to ROW or easement acquisitions
7. Discovery of septic systems, leach fields, or other ancillary wastewater infrastructure
8. Discovery of unknown irrigation facilities, landscape irrigation systems, or water wells
9. Suitable soils for structural foundations
10. Muck excavation — see Project Special Provision Section 203.09
13.9.1 Responsibilities of the County
Upon the Contractor's fulfillment of all applicable requirements of Sections 5.3 and 13, and
subject to the limitations contained therein, the County shall be responsible for, and agrees to
issue Change Orders to: (i) compensate the Contractor for additional costs directly attributable to
changes in the Work arising from Differing Site Conditions considered to be an extraordinary
circumstanceand (ii)extend the Completion Deadlines as the result of any delay in the Critical
Path caused by any such conditions.
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13.9.2 Burden of Proof
The Contractor shall bear the burden of proving that a Differing Site Condition is an
extraordinary circumstance. and that it could not reasonably have worked around the Differing
Site Condition so as to avoid additional cost. Each request for a Change Order relating to a
Differing Site Condition shall be accompanied by a statement signed by a qualified professional
setting forth all relevant assumptions made by the Contractor with respect to the condition of the
Site, justifying the basis for such assumptions, explaining exactly how the existing conditions are
eligible for a Change Order under the terms of this Book 1, and stating the efforts undertaken by
the Contractor to find alternative design or construction solutions to eliminate or minimize the
problem and the associated costs.
13.10 Certain Events
Upon the Contractor's fulfillment of all applicable requirements of Section 13, and subject to the
limitations contained therein, the County shall be responsible for, and agrees to issue Change
Orders: (i) to compensate the Contractor for additional costs directly attributable to the events set
forth in Section 13.3.1.1; and/or (ii) extend the applicable Completion Deadlines as the result of
any delay in the Critical Path affecting a Completion Deadline caused by a Force Majeure event
as defined in 13.3.1.2.
13.11 Hazardous Substances Management
Except as expressly provided in this Section 13.11, the Contract Price includes the cost of all
Activities to be performed by the Contractor as described in Book 2, Section 5. (Accordingly,
compensation for certain Activities required under Book 2, Section 5.0, including investigating,
monitoring, characterizing and testing, are included in the Contract Price and the Contractor shall
not be entitled to additional payment under Section 13.11.1 therefore.)
13.11.1 Price Increase
Subject to Section 13.11.3, the Contractor shall be entitled to payment for Remediation Work
(excluding those conditions for which the Contractor has agreed to be responsible as described in
Section 18.1.1(7)) through a Change Order priced in accordance with Section 13.6 or 13.7.
13.11.2 Time Extension
The Contractor shall be entitled to an extension of the Completion Deadlines to the extent that
any delay in the Critical Path affecting a Completion Deadline is directly attributable to
Remediation Work compensable under Section 13.11.1.
13.11.3 Limitations on Change Orders
All Change Orders authorized by this Section 13.11 shall be subject to the restrictions,
limitations and procedures set forth in Section 13. Allowable costs shall be limited to the
incremental costs associated with the fact that Hazardous Substances subject to Remediation
Work compensable under Section 13.11.1 are present (deducting any avoided costs such as re-
use and/or disposal of Non -Hazardous Substances) after completion of the testing process to
determine whether Hazardous Substances are present.
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The Contractor shall take all reasonable steps to minimize any such costs. In addition,
compensation for Remediation Work compensable under Section 13.11.1 will not be allowed
unless the Contractor demonstrates to the County's satisfaction that: (i) the Remediation Work
could not have been avoided by reasonable design modifications or construction techniques; and
(ii) the Contractor's plan for the Remediation Work represents the approach which is most
beneficial to the Project and the public. The Contractor shall provide the County with such
information, analyses and certificates as may be requested by the County in order to enable a
determination regarding eligibility for payment.
13.12 Material Errors in Right -of -Way Plans
Removed
13.13 Waiver
THE CONTRACTOR HEREBY EXPRESSLY WAIVES ALL RIGHTS TO ASSERT ANY
AND ALL CLAIMS BASED ON ANY CHANGE IN THE WORK, DELAY OR
ACCELERATION (INCLUDING ANY CHANGE, DELAY, SUSPENSION OR
ACCELERATION WHICH, BUT FOR THE EXPRESS TERMS OF THE CONTRACT
DOCUMENTS, COULD BE INFERRED OR IMPLIED AT LAW) FOR WHICH THE
CONTRACTOR FAILED TO PROVIDE PROPER AND TIMELY NOTICE OR FAILED TO
PROVIDE A TIMELY CHANGE REQUEST FOR CHANGE ORDER, AND AGREES THAT
THE CONTRACTOR SHALL BE ENTITLED TO NO COMPENSATION OR DAMAGES
WHATSOEVER IN CONNECTION WITH THE WORK EXCEPT TO THE EXTENT THAT
THE CONTRACT DOCUMENTS EXPRESSLY SPECIFY THAT THE CONTRACTOR IS
ENTITLED TO A CHANGE ORDER OR OTHER COMPENSATION OR DAMAGES. IF A
DEADLINE IS MISSED THAT DOES NOT PREJUDICE EITHER PARTY, FURTHER
RELIEF SHALL BE ALLOWED.
13.14 Disputes
If the County and the Contractor agree that a request to increase the Contract Price and/or extend
any Completion Deadline by the Contractor has merit, but are unable to agree as to the amount of
such price increase and/or time extension, the County agrees to mark up the Change Order
request or Change Order form, as applicable, provided by the Contractor to reduce the amount of
the price increase and/or time extension as deemed appropriate by the County. In such event, the
County will execute and deliver the marked -up Change Order to the Contractor within a
reasonable period after receipt of a request by the Contractor to do so, and thereafter will make
payment and/or grant a time extension based on such marked -up Change Order. The failure of
the County and the Contractor to agree to any Change Order under this Section 13 (including
agreement as to the amount of compensation allowed under a Time and Materials Change Order
and the disputed amount of the increase in the Contract Price and/or extension of a Completion
Deadline in connection with a Change Order as described above) shall be a Dispute to be
resolved pursuant to Section 19. Except as otherwise specified in the Change Order, execution
of a Change Order by both parties shall be deemed accord and satisfaction of all claims by the
Contractor of any nature arising from or relating to the Work covered by the Change Order.
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The Contractor's Claim and any award by the dispute resolver shall be limited to the incremental
costs incurred by the Contractor with respect to the disputed matter (crediting the County for any
corresponding reduction in the Contractor's other costs) and shall in no event exceed the
amounts allowed by Section 13.7 with respect thereto.
13.15 No Release or Waiver
13.15.1 Extension of Time for Performance
No extension of time granted hereunder shall release the Contractor's Surety from its obligations.
The County shall not be deemed to have waived any rights under the Contract (including its right
to abrogate the Contract for abandonment or for failure to complete within the time specified, or
to impose and deduct damages as may be provided herein) as the result of any grant of an
extension of time beyond the date fixed for the completion of any part of the Work, any
acceptance of performance of any part of the Work after a Completion Deadline, or the making
of any payments to the Contractor after such date.
13.15.2 No Change Order Based on Course of Conduct or Order by Unauthorized Person
No course of conduct or dealings between the parties, or express or implied acceptance of
alterations or additions to the Work, and no claim that the County has been unjustly enriched
shall be the basis for any claim, request for additional compensation or extension of a
Completion Deadline. Further, the Contractor shall undertake, at its risk, work included in any
request, order or other authorization issued by a person in excess of that person's authority as
provided herein, or included in any oral request. The Contractor shall be deemed to have
performed such work as a volunteer and at its sole cost. In addition, the County may require the
Contractor to remove or otherwise undo any such work, at the Contractor's sole cost.
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14.0 SUSPENSION OF WORK
14.1 Suspension for Convenience
The County may, at any time and for any reason, by written notice, order the Contractor to
suspend all or any part of the Work required under the Contract Documents for the period of
time that the County deems appropriate for the convenience of the County. The Contractor shall
promptly comply with any such written suspension order. The Contractor shall promptly
recommence the Work upon receipt of written notice from the County directing the Contractor to
resume Work. Suspensions related to seasonal or climatic conditions, or Force Majeure events
shall not be considered a County -Caused Delay.
14.2 Suspension for Cause
The County has the authority by written order (written direction provided by Weld County) to
suspend the Work without liability to the County wholly or in part for the Contractor's failure to:
1. Correct conditions unsafe for the Project personnel or general public.
2. Comply with any Governmental Approval, Legal Requirement, or otherwise carry out the
requirements of the Contract.
3. Carry out orders of the County.
4. Comply with environmental requirements or requirements for developing and
implementing the Quality Management Plan.
The Contractor shall promptly comply with any such written suspension order. The Contractor
shall promptly recommence the Work upon receipt of written notice from the County directing
the Contractor to resume Work.
14.3 Contractor Responsibilities During Suspension
During periods that Work is suspended, the Contractor shall continue to be responsible for the
Work and shall prevent damage or injury to the Project and other facilities in the Project vicinity,
provide for drainage, obtain and maintain compliance with all Governmental Approvals,
maintain all Contractor -provided insurance and bonds and erect necessary temporary structures,
signs or other facilities required to maintain the Project and other facilities in the Project vicinity.
During any suspension period, unless otherwise directed by the County, the Contractor shall
continue to be responsible for maintenance of traffic in accordance with the Traffic Management
Plan and Section 16 of Book 2, for plant and landscape maintenance in accordance with
Section 17 of Book 2 and for maintenance during construction in accordance with Section 18 of
Book 2. If the suspension is for the County's convenience, the additional work performed by the
Contractor during the suspension period shall be considered County -Directed Changes.
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PROJECT No. B2400039
Book 1 - Contract
15.0 TERMINATION FOR CONVENIENCE
15.1 Notice of Termination
The County may terminate the Contract and the performance of the Work by the Contractor in
whole or, from time to time, in part, if the County determines, in its sole discretion, that; a
termination is in the best public, State or national interest to do so. The County shall notify the
Contractor of its decision to terminate by delivering to the Contractor a written Notice of
Termination specifying the extent of termination and its effective date. Termination (or partial
termination) of the Contract shall not relieve any Surety of its obligation for any claims arising
out of the Work performed.
15.2 Contractor Responsibilities Upon Termination
After receipt of a Notice of Termination, and except as otherwise directed by the County, the
Contractor shall immediately proceed as follows, regardless of any delay in determining or
adjusting any amounts due under this Section 15.
1. Stop Work as specified in the notice.
2. Communicate such notice to all affected Subcontractors and that their Subcontracts are
not to be further performed unless otherwise authorized in writing by the County.
3. Place no further Subcontracts or orders for materials, services or facilities, except as
necessary to complete the continued portion of the Work, if any, or for mitigation of
damages.
4. Terminate all Subcontracts to the extent that they relate to the Work terminated.
5. Assign to the County in the manner, at the times, and as and to the extent directed by the
County, all of the right, title and interest of the Contractor under the Subcontracts so
terminated, in which case the County will have the right, in its sole discretion, to accept
performance, settle or pay any or all claims arising out of the termination of such
Subcontracts.
6. Settle all outstanding liabilities and claims arising out of such termination of
Subcontracts, with the Approval or ratification of the County, to the extent it may be
required, which Approval or ratification shall be final.
7. Provide the County with an inventory list of all materials previously produced, purchased
or ordered from Suppliers for use in the Work and not yet used in the Work, including its
storage location, as well as any documentation or other property required to be delivered
hereunder which is either in the process of development or previously completed but not
yet delivered to the County, and such other information as the County may request; and
transfer title and deliver to the County, in the manner, at the times, and as and to the
extent, if any, directed by the County: (i) fabricated or unfabricated parts, the Work in
process, completed Work, supplies and other material produced or acquired for the Work
terminated; and (ii) the Design Documents, Construction Documents and all other
completed or partially completed drawings (including plans, elevations, Sections, details
and diagrams), specifications, records, samples, information and other property that
would have been required to be furnished to the County if the Work had been completed.
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8. Complete performance in accordance with the Contract Documents of all Work not
terminated.
9. Take all action that may be necessary, or that the County may direct, for the safety,
protection and preservation of: (i) the public, including public and private vehicular
movement; (ii) the Work; and (iii) the equipment, machinery, materials and property
related to the Contract Documents that is in the possession of the Contractor and in which
the County has or may acquire an interest.
10. As authorized by the County in writing, use its best efforts to sell, in a manner, at the
times, to the extent, and at the price or prices directed or authorized by the County, any
property of the types referred to in Section 15.2(7); provided, however, that the
Contractor: (i) is not required to extend credit to any purchaser; and (ii) may acquire the
property under the conditions prescribed and at prices Approved by the County. The
proceeds of any transfer or disposition will be applied to reduce any payments to be made
by the County under the Contract Documents or paid in any other manner directed by the
County.
11. If requested by the County, withdraw from the portions of the Site designated by the
County and remove such materials, equipment, tools and instruments used by, and any
debris or waste materials generated by, the Contractor and any Subcontractor in the
performance of the Work as the County may direct.
12. Take other actions directed by the County.
15.3 Responsibility After Notice of Termination
The Contractor shall continue to be responsible for damage to materials after issuance of the
Notice of Termination, except as follows:
1. The Contractor's responsibility for damage to materials for which partial payment has
been made as provided herein shall terminate when the County certifies that those
materials have been stored in the manner and at the locations directed by the County.
2. The Contractor's responsibility for damage to materials purchased by the County
subsequent to the issuance of Notice of Termination shall terminate when title and
delivery of those materials has been taken by the County.
Immediately after the County determines that the Contractor has completed the Work directed to
be completed prior to termination and such other work as may have been ordered to secure the
Project for termination, the Contractor will not be required to provide for continuing safety,
Security and maintenance at the Site.
15.4 Negotiated Termination Settlement
15.4.1 Settlement Proposal
After receipt of a Notice of Termination, the Contractor shall submit a final termination
settlement proposal to the County in the form and with the certification prescribed by the
County. The Contractor shall submit the proposal promptly, but no later than 60 days from the
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effective date of termination, unless the Contractor has requested a time extension in writing
within such 60 -Day period and the County has agreed in writing to allow such an extension. The
County will then review the Contractor's termination settlement proposal and will act upon it,
return it with comments or reject it. If the Contractor fails to submit the proposal within the time
allowed, the County may determine, on the basis of information available to it, the amount, if
any, due the Contractor because of the termination and shall pay the Contractor the amount so
determined.
15.4.2 Negotiated Settlement Amount
The Contractor and the County may agree, as provided in Section 15.4.1, upon the whole or any
part of the amount or amounts to be paid to the Contractor by reason of the total or partial
termination of Work pursuant to this Section 15. Such negotiated settlement may include a
reasonable allowance for profit solely on Work which has been completed as of the termination
date and subsequently Accepted by the County. Such agreed amount(s), exclusive of settlement
costs, shall not exceed the total Contract Price as reduced by the amount of payments otherwise
made and as further reduced by the Contract Price of Work not terminated. Upon determination
of the settlement amount the Contract will be amended accordingly, and the Contractor will be
paid the agreed amount. Nothing in Section 15.5, prescribing the amount to be paid to the
Contractor in the event that the Contractor and the County fail to agree upon the whole amount
to be paid to the Contractor by reason of the termination of Work pursuant to this Section 15,
shall be deemed to limit, restrict or otherwise determine or affect the amount(s) which may be
agreed upon to be paid to the Contractor pursuant to this Section 15.4. Unless otherwise agreed
to by the parties as a part of a negotiated settlement, the County's execution and delivery of any
settlement agreement shall not affect any of its rights under the Contract Documents with respect
to completed Work, relieve the Contractor from its obligations with respect thereto, including
Warranties, or affect the County's rights under the Payment and Performance Bond as to such
completed or non -terminated Work.
15.5 Determination of Settlement Amount if Negotiations Fail
If the Contractor and the County fail to agree, as provided in Section 15.4.2, upon the whole
amount to be paid to the Contractor by reason of the termination of Work pursuant to this
Section 15, the amount payable (exclusive of interest charges) shall be determined by the County
in accordance with the following, but without duplication of any amounts agreed upon in
accordance with Section 15.4:
15.5.1 Payment Amount
The County will pay the Contractor the sum of the following amounts for Work performed prior
to the effective date of the Notice of Termination, as such amounts are determined by the
County:
1. The Contractor's actual reasonable out-of-pocket cost (without profit, and including
equipment costs only to the extent permitted by Section 13) for all Work performed,
including mobilization, demobilization and work done to secure the Project for
termination, including reasonable overhead and accounting for any refunds payable with
respect to insurance premiums, deposits or similar items, as established to the County's
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satisfaction. In determining the reasonable cost, deductions will be made for the cost of
materials to be retained by the Contractor, amounts realized by the sale of materials and
for other appropriate credits. Deductions will also be made for the cost of damaged
materials. When, in the opinion of the County, the cost of an item of Work is excessively
high due to costs incurred to remedy or replace defective or rejected Work, the
reasonable cost to be allowed will be the estimated reasonable cost of performing that
Work in compliance with the requirements of the Contract Documents and the excessive
actual cost will be disallowed.
2. As profit on Clause 1 above, a sum determined by the County to be fair and reasonable;
provided, however, that if it appears that the Contractor would have sustained a loss on
the entire Contract had it been completed, no profit shall be included or allowed under
this Section 15.5.1 and an appropriate adjustment shall be made by reducing the amount
of the settlement to reflect the indicated rate of loss.
3. The cost of settling and paying claims arising out of the termination of Work under
Subcontracts as provided in Section 15.2(6), exclusive of the amounts paid or payable on
account of supplies or materials delivered or services furnished by the Subcontractor
prior to the effective date of the Notice of Termination under the Contract, which
amounts shall be included in the cost on account of which payment is made under
clause 1 above.
4. The reasonable out-of-pocket cost (including reasonable overhead) of the preservation
and protection of property incurred pursuant to Section 15.2(9) and any other reasonable
out-of-pocket cost (including overhead) incidental to termination of Work under the
Contract, including the reasonable cost to the Contractor of handling material returned to
the vendor, delivered to the County or otherwise disposed of as directed by the County,
and including a reasonable allowance for the Contractor's administrative costs in
determining the amount due to the Contractor as the result of the termination of Work
under the Contract.
15.5.2 Maximum Compensation
The Contractor acknowledges and agrees that it shall not be entitled to any compensation in
excess of the value of the Work performed (determined as provided in Section 15.5.1) plus its
settlement costs, and that items such as lost or anticipated profits, unabsorbed overhead and
opportunity costs shall not be recoverable by it upon termination of the Contract. However, the
total amount to be paid to the Contractor, exclusive of costs described in Sections 15.5.1(3), (4)
and (5), may not exceed the total Contract Price less the amount of payments previously made
and less the Contract Price of any Work not terminated. Furthermore, if any refund is payable
with respect to insurance or bond premiums, deposits or similar items which were previously
passed through to the County by the Contractor, such refund shall be paid directly to the County
or otherwise credited to the County.
15.5.3 Excluded Items
Except for normal spoilage, and except to the extent that the County will have otherwise
expressly assumed the risk of loss, there will be excluded from the amounts payable to the
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Contractor under Section 15.5.1, the fair value, as determined by the County, of equipment,
machinery, materials and property which is destroyed, lost, stolen or damaged so as to become
undeliverable to the County, or to a buyer pursuant to Section 15.2(10). The amount set forth in
the Proposal by the Contractor for the Work terminated shall be a factor to be analyzed in
determining the value of the Work terminated.
15.5.4 Payment of Termination Amount
Upon determination of the amount of the termination payment, the Contract shall be amended to
reflect the agreed termination payment, and the Contractor shall be paid the agreed amount.
15.6 Partial Termination
If a termination hereunder is partial, the Contract Price for the remainder of the Work shall be
adjusted as appropriate to account for the change in the overall scope of the Project.
15.7 Reduction in Amount of Claim
The amount otherwise due the Contractor under this Section 15 shall be reduced by: (i) all
unliquidated advance or other payments made to or on behalf of the Contractor applicable to the
terminated portion of the Contract; (ii) the amount of any claim which the County may have
against any Contractor -Related Entity in connection with the Contract; (iii) the agreed price for,
or the proceeds of the sale of, any property, materials, supplies or other things acquired by the
Contractor or sold, pursuant to the provisions of this Section 15, and not otherwise recovered by
or credited to the County; (iv) amounts that the County deems advisable, in its sole discretion, to
retain to cover any existing or threatened claims, Liens and stop notices relating to the Project,
including claims by Utility Owners; (v) the cost of repairing any Nonconforming Work, and
(vi) any amounts due or payable by the Contractor to the County.
15.8 Partial Payments
The County may, from time to time, under such terms and conditions as it may prescribe and in
its sole discretion, make partial payments on account against costs incurred by the Contractor in
connection with the terminated portion of the Contract, whenever in the opinion of the County
the aggregate of such payments shall be within the amount to which the Contractor will be
entitled under this Section 15. If the total of such payments is in excess of the amount finally
agreed or determined to be due under this Section 15, such excess shall be payable by the
Contractor to the County upon demand together with interest at a rate equal to the average rate at
the time being received from the investment of state funds, as determined by the State Treasurer,
for the period from the date such excess payment is received by Contractor to the date on which
such excess is repaid to the County. However, no interest will be charged with respect to any
such excess payment attributable to a reduction in Contractor's claim by reason of retention or
other disposition of termination inventory until ten days after the date of such retention or
disposition, or such later date as determined by the County by reason of the circumstances.
15.9 Inclusion in Subcontracts
The Contractor shall insert in all Subcontracts a requirement that the Subcontractor shall stop
Work on the date and to the extent specified in a Notice of Termination from the County in
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PROJECT NO. B2400039
Book 1 - Contract
accordance with this Section 15, and shall require Subcontractors to insert the same provision in
each Subcontract at all tiers.
15.10 Limitation on Payments to Subcontractor
For the purposes of Sections 15.4.2 and 15.5, upon termination under Section 15.2(4) of Work
under any Subcontract, the Contractor will not be entitled to reimbursement for that portion of
the termination settlement with any such Subcontractor which constitutes anticipatory or
unearned profit on Work not performed, or which constitutes consequential damages on account
of the termination or partial termination.
15.11 No Unearned Profits or Consequential Damages
Under no circumstances shall the Contractor be entitled to anticipatory or unearned profits or
consequential or other damages as a result of a termination or partial termination under this
Section 15. The payment to the Contractor determined in accordance with this Section 15
constitutes the Contractor's sole and exclusive remedy for a termination under this Section 15.
15.12 No Waiver
Anything contained in the Contract to the contrary notwithstanding, a termination under this
Section 15 shall not waive any right or claim to damages, which the County may have, and the
County may pursue any cause of action, which it may have at law or in equity or under the
Contract.
15.13 Dispute Resolution
The failure of the parties to agree on amounts due under this Section 15 shall be a Dispute to be
resolved in accordance with Section 19.
15.14 Allowability of Costs
All costs claimed by the Contractor under this Section 15 shall, at a minimum, be allowable,
allocable and reasonable in accordance with the cost principles and procedures of 48 CFR
Part 31.
15.15 Suspension of Work
In the event of any suspension of Work by the County, after issuance of NTP, for more than 180
consecutive days, the Contractor shall have the right to consider the Contract to have been
terminated for convenience under this Section 15. The Contractor shall notify the County of
such election by delivering to the County a written notice of termination due to such suspension
specifying its effective date. Upon delivery by the Contractor to the County of a notice of
termination due to suspension, the provisions of this Section 15 shall apply.
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PROJECT No. B2400039
Book 1 - Contract
15.16 Termination Due to Non -Appropriation of Funds
15.16.1 Availability of Funds
The obligation of the County to make any payments to the Contractor hereunder is contingent
upon funds being appropriated, budgeted, allocated and otherwise made available by the County
in amounts to meet its funding obligations for the Contract. The Contractor is not obligated to
perform Work, and correspondingly is not entitled to any compensation for Work performed, in
any fiscal year beyond the amount, if any, appropriated and made available by the County in
amounts to meet its funding obligations for the Contract.
1116.2 (Removed)
15.16.3 Remedy for Failure to Appropriate
If funds are not budgeted, allocated or otherwise made available by the County or any other
governmental entity upon which the County has relied to provide a portion of the project funds,
resulting in stoppage of Work, the Contractor agrees to resume performance of the Work without
any modification to the terms and conditions hereof, provided that an appropriation therefore is
approved or funds are made available within 60 days after the Contractor stops Work under
Section 15.16.1. Any such Work stoppage shall be considered a suspension for convenience
under Section 14.1. If funds are not appropriated or made available before expiration of such 60 -
Day period, either party ryay terminate the Contract.
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16.0 DEFAULT
16.1 Default by Contractor
16.1.1 Events of Default
The Contractor shall be in breach under the Contract upon the occurrence of any one or more of
the following events or conditions:
1. The Contractor fails to promptly begin the Work under the Contract Documents
following issuance of NTP.
2. The Contractor fails to perform the Work with sufficient resources to ensure the prompt
completion thereof; (e.g., the Contractor fails to execute remedial action in accordance
with the Quality Management Plan and Book 2, Section 3.0).
3. The Contractor fails to perform the Work in accordance with the Contract Documents,
refuses to remove and replace rejected materials or Nonconforming or unacceptable
Work, or fails to remove and replace workers as directed by the County under
Section 7.4.3.
4. The Contractor discontinues or suspends the prosecution of the Work (exclusive of Work
stoppage due to: (i) termination by the County; (ii) a Force Majeure event or suspension
by the County; or (iii) nonpayment by the County not related to a breach by the
Contractor).
5. The Contractor fails to resume performance of Work, which has been suspended or
stopped, within a reasonable time after receipt of notice from the County to do so or (if
applicable) after cessation of the event preventing performance.
6. The Contractor breaches any other agreement, representation or warranty contained in the
Contract Documents, or the Contractor fails to perform any other obligation under the
Contract Documents, including EEO and DBE requirements.
7. The Contractor fails to provide and maintain the required insurance and payment and
performance bond.
8. The Contractor assigns or transfers the Contract Documents or any right or interest
therein, except as expressly permitted under Section 24.3.2.
9. The Contractor fails, absent a valid dispute, to make payment when due for labor,
equipment or materials in accordance with its agreements with Subcontractors and
applicable law, fails to comply with any Legal Requirement or Governmental Approval;
or fails reasonably to comply with the instructions of the County consistent with the
Contract Documents.
10. The Contractor fails to discharge or obtain a stay within ten days of any final judgment(s)
or order for the payment of money against it in excess of $100,000 in the aggregate
arising out of the prosecution of the Work (provided that, for purposes hereof, posting of
a bond in the amount of 125 percent of such judgment or order shall be deemed an
effective stay).
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11. The Contractor or any partner, joint venture member or other member of the Contractor
shall have become insolvent, generally does not pay its debts as they become due, admits
in writing its inability to pay its debts, or makes an assignment for the benefit of
creditors.
12. Insolvency, receivership, reorganization or bankruptcy proceedings shall have been
commenced by or against the Contractor or any partner, joint venture member or other
member of the Contractor and not dismissed within 60 days.
13. Any representation or warranty made by the Contractor in the Contract Documents or in
any certificate, schedule, instrument or other document delivered pursuant to the Contract
Documents shall have been false or materially misleading when made.
14. The Contractor is a party to fraud.
16.1.2 Right to Cure
The County agrees to allow the Contractor and Surety 15 days notice and opportunity to cure any
breach before declaring an Event of Default, provided that no such notice and opportunity to cure
is required for any breach, which by its nature cannot be cured. If a breach is curable but by its
nature cannot be cured within 15 days, as determined by the County, the County agrees not to
declare an Event of Default provided that the Contractor commences such cure within such 15 -
Day period and thereafter diligently prosecutes such cure to completion; provided, however, that
in no event will such cure period exceed 60 days in total. The Contractor hereby acknowledges
and agrees that the events described in Section 16.1.1(7) through (8) and (11) through (14) are
not curable. Notwithstanding the foregoing, if the County believes a condition affecting the
Project poses an immediate and imminent danger to public health or safety, the County may,
without notice and without awaiting lapse of any cure period, rectify the condition at the
Contractor's cost, and so long as the County undertakes such action in good faith, even if under a
mistaken belief in the occurrence of such default, such action shall not expose the County to
liability to the Contractor and shall not entitle the Contractor to any other remedy, it being
acknowledged that the County has a paramount public interest in providing and maintaining safe
public use of and access to the Project. the County's good faith determination of the existence of
such danger shall be deemed conclusive in the absence of clear and convincing evidence to the
contrary.
16.2 Remedies
16.2.1 Rights of the County
If an Event of Default occurs, then, in addition to all other rights and remedies provided by law
or equity or available under the Contract or otherwise, including the rights to recover Liquidated
Damages and to seek recourse against the surety bonds required hereby and/or other performance
Security, the County shall have the following rights and remedies, without further notice, and
without prejudice to any of its other rights or remedies and without waiving or releasing the
Contractor from any obligations, and the Contractor shall have the following obligations (as
applicable):
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1. The County may order the Contractor to suspend or discontinue the Work or any portion
of the Work.
2. The County may terminate the Contract or a portion thereof, in which case, the provisions
of Sections 15.2 and 15.3 shall apply.
3. If and as directed by the County, the Contractor shall withdraw from the Site; and shall
remove such materials, equipment, tools and instruments used by, and any debris or
waste materials generated by, any Contractor -Related Entity in the performance of the
Work.
4. The Contractor shall deliver to the County possession of any or all facilities of the
Contractor located on the Site as well as any or all Design Documents, Construction
Documents and all other completed or partially completed drawings (including plans,
elevations, details and diagrams), specifications, records, information, schedules,
samples, Shop Drawings and other documents, that the County deems necessary for
completion of the Work.
5. The Contractor shall confirm the assignment to the County of the Subcontracts requested
by the County, and the Contractor shall terminate, at its cost, all other Subcontracts.
6. The County may deduct from any amounts payable by the County to the Contractor such
amounts payable by the Contractor to the County, including Liquidated Damages or other
damages payable to the County under the Contract Documents.
7. The County shall have the right, but not the obligation, to pay such amount and/or
perform such act as may then be required.
8. The County, without incurring any liability to the Contractor, shall have the rights to:
(i) take the performance of all or a portion of the Work from the Contractor (either with
or without the use of the Contractor's materials, equipment, tools and instruments) and
enter into an agreement with another Person for the completion of such Work; or (ii) use
such other methods, as in the opinion of the County, will be required for the completion
of the Project.
9. If the County exercises any right to perform any obligations of the Contractor, in the
exercise of such right the County may, but is not obligated to, among other things:
(i) perform or attempt to perform, or cause to be performed, such work; (ii) spend such
sums as the County deems necessary and reasonable to employ and pay such architects,
engineers, consultants and contractors and obtain materials and equipment as may be
required for the purpose of completing such work; (iii) execute all applications,
certificates and other documents as may be required for completing the work; (iv) modify
or terminate any contractual arrangements; (v) take any and all other actions which it may
in its sole discretion consider necessary to complete the Work; and (vi) prosecute and
defend any action or proceeding incident to the Work.
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16.2.2 Liability of Contractor
16.2.2.1 Occurrence of an Event of Default
If an Event of Default has occurred, the Contractor and Surety shall be jointly and severally
liable to the County (in addition to any damages specifically provided for under the Contract
Documents including the Liquidated Damages payable hereunder) for all costs reasonably
incurred by the County or any party acting on the County's behalf in completing the Work or
having the Work completed by another Person (including any re -procurement costs, throw away
costs for unused portions of the completed Work and increased financing costs). Upon the
occurrence of an Event of Default, the County shall be entitled to withhold all or any portion of
further payments to the Contractor until such time as the County is able to determine how much
(if any) remains owing to the Contractor. Promptly upon such determination, the County shall
notify the Contractor in writing of the amount, if any, that the Contractor shall pay the County or
that the County shall pay the Contractor with respect thereto. All costs and charges incurred by
the County, including attorneys', accountants' and expert witness fees and costs, together with
the cost of completing the Work under the Contract Documents, will be deducted from any
moneys due or which may become due to the Contractor. If such expense exceeds the sum
which would have been payable under the Contract, then the Contractor and its Surety(ies) shall
be liable and shall pay to the County the amount of such excess.
16.2.2.2 Assurance of Future Performance
It is recognized that if a default under Section 16.1.1(11) or (12) occurs, such event could impair
or frustrate the Contractor's performance of the Work. Accordingly, it is agreed that upon the
occurrence of any such event, the County shall be entitled to request of the Contractor, or its
successor in interest, adequate assurance of future performance in accordance with the terms and
conditions hereof.
Failure to comply with such request within ten days of delivery of the request shall entitle the
County to terminate the Contract and to the accompanying rights set forth above. Pending
receipt of adequate assurance of performance and actual performance in accordance therewith,
the County shall be entitled to proceed with the Work with its own forces or with other
contractors on a time and material or other appropriate basis, the cost of which will be credited
against and deducted from the County's payment obligations hereunder. The foregoing shall be
in addition to all other rights and remedies provided by law or equity and such rights and
remedies as are otherwise available under the Contract and Payment and Performance Bond.
16.2.2.3 Alternative to Terminating Contract and Completing Work
In lieu of the provisions of this Section 16.2 for terminating the Contract and completing the
Work, the County may pay the Contractor for the parts already done according to the provisions
of the Contract Documents and may treat the parts remaining undone as if they had never been
included or contemplated by the Contract. No claim under this provision will be allowed the
Contractor for prospective profits on, or any other compensation relating to, Work uncompleted
by the Contractor.
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16.2.2.4 Termination Deemed to Constitute Termination for Convenience
If the Contract is terminated for grounds, which are later determined not to justify a termination
for default, such termination shall be deemed to constitute a termination for convenience
pursuant to Section 15.
16.2.2.5 Damages Resulting from Contractor's Breach or Failure to Perform
If the County suffers damages as a result of the Contractor's breach or failure to perform an
obligation under the Contract Documents, then the County shall be entitled to recovery of such
damages from the Contractor regardless of whether the breach or failure that gives rise to the
damages ripens into an Event of Default.
16.2.2.6 Cumulative Remedies
The exercise or beginning of the exercise by the County of any one or more rights or remedies
under this Section 16.2 shall not preclude the simultaneous or later exercise by the County of any
or all other rights or remedies, each of which shall be cumulative.
16.2.2. 7 Continued Liability of Contractor and Surety
The Contractor and Surety shall not be relieved of liability for continuing Liquidated Damages
on account of a default by the Contractor hereunder or by the County's declaration of an Event
of Default, or by actions taken by the County under this Section 16.2.
163 Right to Stop Work if Undisputed Payment is Not Made
The Contractor shall have the right to stop Work if the County fails to make an undisputed
payment due hereunder within seven days after receipt of notice of nonpayment. Any such Work
stoppage shall be considered a suspension under Section 14.1. The Contractor shall not have the
right to terminate the Contract for default as the result of any failure by the County to make an
undisputed payment due hereunder, but the Contractor shall have the right to declare a
termination for convenience under Section 15 upon meeting the requirements of Section 15.15.
16.4 Notice and Opportunity to Cure Other Types of County Breaches
In the event of any breach of the Contract by the County other than a failure to make payments to
the Contractor, the Contractor shall provide to the County a written notice describing the breach
and the opportunity to cure such breach. the County shall be entitled to 30 days notice and
opportunity to cure any such breach; provided that if such breach is capable of cure but by its
nature cannot be cured within 30 days, the County shall have such additional period of time as
may be reasonably necessary to cure the breach so long as the County commences such cure
within such 30 -day period, and thereafter diligently prosecutes such cure to completion. The
Contractor shall have no right to exercise any remedies to which it may be entitled at law or in
equity until the foregoing notice is delivered and the foregoing cure period lapses without cure of
the breach.
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17.0 DAMAGES
17.1 Liquidated Damages
17.1.1 Failure to Meet Contract Requirements
The Contractor understands and agrees that if the Contractor fails to complete the Work in
accordance with the Contract Documents, the County will suffer substantial losses and damages.
The Contractor agrees that it shall be liable for all such losses and damages. The Contractor
acknowledges and agrees that because of the unique nature of the Project, the fact that
inconvenience to the traveling public will be one of the significant impacts of any completion
delay, certain closure duration delays or failure to obtain access, it is impracticable and
extremely difficult to ascertain and determine the actual damages which would accrue to the
County and the public in the event of the Contractor's failure to achieve Project Completion or
Final Acceptance by the applicable Completion Deadlines, or to obtain necessary rights of access
to encroach upon private property. Therefore, the Contractor and the County have agreed to
stipulate the amount payable by the Contractor in the event of its failure to meet a Completion
Deadline or to obtain necessary rights of access. The Contractor acknowledges and agrees that
such Liquidated Damages are intended to compensate the County solely for the Contractor's
failure to meet these Contract Document requirements, and shall not excuse the Contractor from
liability from any other breach of Contract requirements, including any failure of the Work to
conform to applicable requirements.
17.1.1.1 Failure to Meet Contract Deadlines and Access Requirements
If the Contractor fails to achieve Project Completion and/or Final Acceptance by the applicable
Completion Deadline, the Contractor agrees to pay the County Liquidated Damages according to
Table 108-2 of the CDOT Standard Specifications for Road and Bridge Construction.
17.1.1.2 Multiple Assessments of Liquidated Damages
Liquidated Damages may be assessed simultaneously under more than one subsection under
Section 17.1.1.1.
17.1.1.3 Maximum Damage Amounts
Cumulative Liquidated Damages under Section 17.1.1.1 shall not exceed $4,000,000.
17.1.2 Reasonableness of Liquidated Damage Amounts
The Contractor acknowledges and agrees that the foregoing damages have been set based on an
evaluation by the County of damages, which it will incur in each of the above events, including
additional interest expense as well as administrative costs. The Contractor and the County agree
that the amount of such damages are impossible to ascertain as of the date of execution hereof
and the parties have agreed to such Liquidated Damages in order to fix the Contractor's costs and
to avoid later disputes over which items are properly chargeable to the Contractor. The
Contractor understands and agrees that any Liquidated Damages payable in accordance with this
Section 17.1 are in the nature of liquidated damages and not a penalty and that such sums are
reasonable under the circumstances existing as of the date of execution and delivery of the
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Contract. The Contractor further acknowledges and agrees that Liquidated Damages may be
owing even though no Event of Default has occurred.
17.2 Waiver
17.2.1 No Waiver
Permitting or requiring the Contractor to continue and finish the Work or any part thereof after a
Completion Deadline shall not act as a waiver of the County's right to receive Liquidated
Damages hereunder or any rights or remedies otherwise available to the County.
173 Payment of Liquidated Damages
To the extent Liquidated Damages are not deducted from any amount owed by the County to the
Contractor, the County may send Contractor an invoice and the Liquidated Damages shall be
payable by the Contractor to the County within ten days after the Contractor's receipt of the
invoice therefore.
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18.0 INDEMNIFICATION
18.1 Indemnifications by Contractor
18.1.1 General Indemnities
Subject to Section 18.1.3, the Contractor shall release, defend, indemnify and hold harmless the
County and its agents, consultants, and their respective successors and assigns and their
respective shareholders, officers, directors, agents and employees (collectively referred to as the
"Indemnified Parties") from and against any and all claims, causes of action, suits, judgments,
investigations, legal or administrative proceedings, penalties, fines, damages, losses, liabilities,
costs and expenses, including any injury to or death of persons or damage to or loss of property
(including damage to utility facilities), and including attorneys', accountants' and expert witness
fees and costs, arising out of, relating to or resulting from:
1. The breach or alleged breach of the Contract by any Contractor -Related Entity.
2. The failure or alleged failure by any Contractor -Related Entity to comply with any
applicable Environmental Laws or other Legal Requirements (including Legal
Requirements regarding handling, generation, treatment, storage, transportation and
disposal of Hazardous Substances) or Governmental Approvals in performing the Work.
3. Any alleged patent or copyright infringement or other allegedly improper appropriation
or use of trade secrets, patents, proprietary information, know-how, copyright rights or
inventions in performance of the Work, or arising out of any use in connection with the
Project of methods, processes, designs, information or other items furnished or
communicated to the County or another Indemnified Party pursuant to the Contract;
provided that this indemnity shall not apply to any infringement resulting from the
County's failure to comply with specific written instructions regarding use provided to
the County by the Contractor.
4. The alleged negligent act or omission or willful misconduct of any Contractor -Related
Entity.
5. Any and all claims by any governmental or taxing authority claiming taxes based on
gross receipts, purchases or sales, or the use of any property or income of the Contractor
or any of its Subcontractors or any of their respective agents, officers or employees with
respect to any payment for the Work made to or earned by any Contractor -Related Entity.
6. Any and all claims filed in connection with the Work, including all expenses and
attorneys', accountants' and expert witness fees and costs incurred in discharging any
claim, provided that the County is not in default in payments owing to the Contractor
with respect to such Work.
7. Any spill or release or threatened spill or release of Hazardous Substances: (i) attributable
to the negligence, willful misconduct or breach of contract by any Contractor -Related
Entity; or (ii) which was brought onto the Site by any Contractor -Related Entity.
8. The claim or assertion by any contractor of inconvenience, disruption, delay or loss
caused by interference by any Contractor -Related Entity with or hindering the progress or
completion of work being performed by other contractors as described in Section 23.1, or
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failure of any Contractor -Related Entity to cooperate reasonably with other contractors in
accordance therewith.
18.1.2 Design Defects
Subject to Section 18.1.3, the Contractor shall release, defend, indemnify and hold harmless the
Indemnified Parties from and against any and all claims, causes of action, suits, judgments,
investigations, legal or administrative proceedings, penalties, fines, damages, losses, liabilities,
costs and expenses, including any injury to or death of persons or damage to or loss of property
(including damage to utility facilities), and including attorneys', accountants' and expert witness
fees and costs, arising out of, relating to or resulting from Errors in the Design Documents,
regardless of whether such Errors were also included in the Basic Configuration or Reference
Documents. The Contractor agrees that, because the Basic Configuration and Reference
Documents are subject to review and modification by the Contractor, it is appropriate for the
Contractor to assume liability for Errors in the completed Project even though they may be
related to Errors in the Basic Configuration or Reference Documents.
18.1.3 Losses Due to Negligence of Indemnified Parties
The Contractor's indemnity obligation under Sections 18.1.1 and 18.1.2 shall not extend to any
loss, damage or cost to the extent that such loss, damage or cost was caused by the negligence or
willful misconduct of such Indemnified Party or its agents, servants or independent contractors
who are directly responsible to such Indemnified Party (in other words, a comparative negligence
standard shall apply).
18.1.4 Claims by Employees
In claims by an employee of the Contractor, a Subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, the indemnification obligation
under this Section 18.1 shall not be limited by any limitation on the amount or type of damages,
compensation or benefits payable by or for the Contractor or a Subcontractor under workers'
compensation, disability benefit or other employee benefits laws.
18.1.5 Reliance on Contractor's Performance
The Contractor hereby acknowledges and agrees that it is the Contractor's obligation to cause the
Project to be designed and to construct the Project in accordance with the Contract Documents
and that the Indemnified Parties are fully entitled to rely on the Contractor's performance of such
obligation. The Contractor further agrees that any review, acceptance and/or approval by the
County and/or others hereunder shall not relieve the Contractor of any of its obligations under
the Contract Documents or in any way diminish its liability for performance of such obligations
or its obligations to provide indemnities hereunder.
18.1.6 Indemnities in Connection with Utilities
The Contractor is advised that each Utility Agreement contains provisions for the Contractor to
indemnify, save and hold harmless the Utility Owner, its employees and agents as a result of any
act or omission by the indemnifying Contractor. The Contractor hereby agrees to and shall
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perform and comply with such provisions of the Utility Agreements for the benefit of the Utility
Owners, their employees and agents.
18.2 Responsibility of County for Certain Hazardous Substances
18.2.1 Pre -Existing Site Contamination
It is recognized that the County may assert that certain third persons or parties may rightfully
bear the ultimate legal responsibility for any and all Hazardous Substances, which may currently
be present on the Site. It is further recognized that certain state and federal statutes provide that
individuals and firms may be held liable for damages and claims related to Hazardous
Substances under such doctrines as joint and several liability and/or strict liability. It is not the
intention of the parties that the Contractor be exposed to any such liability arising solely out of:
(i) pre-existing Site contamination, whether known or unknown, except as otherwise provided in
Section 18.1.1(7); (ii) the non -negligent performance by the Contractor, its employees, agents,
officers or Subcontractors or any other Persons for whom the Contractor may be contractually or
legally responsible, in the handling of such Hazardous Substances; and/or (iii) the activities of
any Persons not described in (ii) above, including the County.
Accordingly, for the purposes of the Contract only, the County shall reimburse the Contractor for
Remediation Work (through payment of the Contract Price, as it may be increased by Change
Order pursuant to Section 13), and will be responsible for any and all claims, damages, losses,
liabilities, costs and expenses, arising out of, or in connection with, bodily injury (including
death) to persons, damage to property or environmental removal or response costs arising out of
the presence, release or threatened release of Hazardous Substances on or from the Site,
irrespective of whether such substances were generated or introduced on the Site before or after
execution of the Contract and irrespective of whether the County was aware of, or directly
involved in, the generation or introduction of such materials, but specifically excluding from any
obligation of responsibility for those conditions for which the Contractor has agreed to be
responsible as described in Section 18.1.1(7).
18.2.2 Generator Number for Hazardous Waste Remediation
Except for Hazardous Substances for which the Contractor is responsible as described in
Section 18.1.1(7), without contradiction of any assertion by the County of third -party liability,
and for purposes of the Contract only:
1. The Contractor shall not be required to execute any hazardous waste manifests as a
"generator.
2. Hazardous Substances encountered in the performance of the Work shall be disposed of,
if at all, utilizing an EPA Identification Number or other appropriate legal device
obtained by, and carried in the name of, the County or another Person designated by the
County.
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18.3 No Effect on Other Rights
The foregoing obligations shall not be construed to negate, abridge or reduce other rights or
obligations, which would otherwise exist in favor of a party hereunder.
18.4 Comprehensive Environmental Response, Compensation, and Liability Act
Agreement
Without limiting their generality, the indemnities set forth in Section 18.1.1(7) are intended to
operate as agreements pursuant to Section 107(e) of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9607(e), to insure,
protect, hold harmless and indemnify the parties indemnified in said Section 18.1.1(7).
18.5 Intent of Indemnity for Breach of Contract
The requirement to provide an indemnity for breach of contract set forth in Section 18.1.1(1) is
intended to provide protection to the County with respect to third party claims associated with
such breach. It is not intended to provide the County with an alternative cause of action for
damages incurred directly by the County with respect to such breach.
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19.0 PARTNERING, CLAIMS FOR ADJUSTMENT AND DISPUTES
19.1 Partnering
The County intends to encourage the use of an extensive partnering program among the County,
the Contractor, its Subcontractors and other stakeholders, where appropriate. Contractor shall
follow partnering process as set forth in Book 2.
It is the intent of the parties that the dispute resolution provisions contained in this Section shall
apply only in the event that the normal County -Contractor issue resolution efforts through
partnering are not successful. The dispute resolution provisions set forth in Section 19.2 shall
apply to all Disputes arising out of the Work that are not resolved by the parties through the
partnering process, except as expressly provided to the contrary in the Contract Documents.
19.2 Dispute Resolution; General Provisions
19.2.1 Mandatory Nature of Process
All Disputes between the Contractor and the County that have not been resolved by the parties
through the partnering process shall be resolved as provided by this Section.
19.2.2 Disputes; Disputes Governed by this Section; Priorities; Disputes Involving Utility
Owners
19.2.2.1 Disputes include, but are not limited to:
1. Any disagreement resulting from a change, delay, change order, another written order, or
an oral order from the Project Manager or their designee, including any direction,
instruction, interpretation, or determination by the Project Manager or their designee
concerning extra work, increased costs, delay, or any other issue including, but not
limited to, an assertion by the Contractor seeking, as a legal right, the payment of money,
adjustment or interpretation of Contract terms, or other relief, arising under or relating the
this Contract.
2. Any unsatisfied request for additional compensation or time based on: (a) Work or
materials not clearly defined in the Contract; (b) extra work not ordered by the County;
(c) extensions of time made pursuant to subsection 13; or (d) any other cause.
19.2.2.2 Participation in and completion of this dispute resolution process is a condition
precedent to de novo litigation.
19.2.2.3 Hereafter, all references to Disputes brought by the Contractor refer also to Disputes
brought by the Contractor on behalf of any of its Subcontractors, provided all the requirements of
this Section are complied with.
19.2.2.4 If a Dispute arises relating to a Utility Agreement or the Utility Work there under, and
the Utility Owner is a necessary or appropriate party to such Dispute, then such Dispute shall be
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resolved in the manner set forth in the applicable Utility Agreement, and the Contractor shall
participate in such Dispute resolution process as appropriate to resolve such Dispute.
19.2.3 Overview of Process
In the event of any Dispute, the Contractor shall follow the processes and requirements set forth
in CDOT Standard Specifications for Road and Bridge Construction, No. 105.22, No 105.23, and
No 105.24 and as amended by Revision of Section 105 Disputes and claims for Contract
Adjustments included in Book 5. Any and all Dispute Resolution Boards shall be On Demand.
19.2.4 Continuation of Work
At all times during this Dispute resolution process or any subsequent administrative or court
proceeding, and at all times during the pendency of any Dispute with any other project
contractor, the Contractor and all Subcontractors shall proceed with the Project Work diligently,
without delay, in accordance with all provisions of the Contract Documents. Continued
performance by the Contractor shall not prejudice the right to bring any claim.
19.2.5 Notice and Record Keeping for Disputes
In the event of any Dispute, Contractor shall comply with all notice and record keeping
requirements contained in CDOT Standard Specifications for Road and Bridge Construction, No.
105.22, No 105.23, and No 105.24, which are incorporated herein by this reference.
19.2.6 Monthly Settlement Negotiations
Throughout protested work, the Contractor and the Project Manager shall discuss the Dispute on
a monthly basis and attempt to negotiate a resolution in good faith. The content of the monthly
discussions shall be inadmissible in any legal, equitable, or administrative proceedings.
19.2.7 Claim Requirements
19.2.7.1 Definition
Claim(s) are all Disputes that remain unsettled and/or unresolved after Contractor has complied
with all of the processes and requirements of Section 19.2.3 through 19.2.6 of this Contract.
19.2.7.2 Process
The Contractor shall follow the processes and requirements from Claim(s) set forth in CDOT
Standard Specifications for Road and Bridge Construction, No. 105.24, which is incorporated
herein by this reference. Contractor shall select de novo litigation to finally resolve a Claim.
19.2.7.3 Record Keeping
The record keeping requirements for Disputes shall apply to Claims and any additional record
keeping requirements contained in CDOT Standard Specifications for Road and Bridge
Construction, No. 105.24 shall also apply.
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19.2.7.4 Complete and Final Claim Package
The Contractor shall provide the County with six (6) copies of a complete and final claim
package. The claim package shall follow the processes and requirements contained in CDOT
Standard Specifications for Road and Bridge Construction, No. 105.24.
19.2.7.5 Multiple Claims
If more than one Claim has been filed by the Contractor on the Project, the County will have the
right to consolidate all related claims and issue one decision on all such claims. Consolidation
on unrelated Claims will not be made.
19.2.7.6 Total Cost Claims
For the purpose of this Contract, "total cost claim" or "modified total cost claim" shall be
deemed to include all work required by the contract or any portion, unit part or parts of the work
required by the contract however such portion, unit, part or parts of the work may be identified,
categorized or isolated from remaining work and any claims for compensation for all work on
the contract or any portion, unit, part or parts of the work of the contract using any form,
technique, method or mode which results in a "total cost" figure, sum or result from cost
computation. All disputes and claims seeking damages calculated on a total cost or modified
total cost basis will not be considered unless the party asserting such damages established all
legal requirements thereof.
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20.0 ACCEPTANCE OF PROJECT
20.1 Project Completion
20.1.1 Notice by Contractor
As a pre -requisite to Project completion, the Contractor shall provide written notice to the
County when all of the following have occurred with respect to the Project:
1. The Contractor has completed all Work (except for Punch List items, final cleanup
and other items only included in the requirements for Final Acceptance).
2. The Contractor has ensured that the Work has been performed in accordance with the
requirements of the Contract Documents.
3. The Contractor has received all applicable Governmental Approvals required for the
Project.
4. The Contractor has furnished to the County certifications from the Contractor's
Design Manager, in form and substance satisfactory to the County, certifying that the
Design Documents meet the requirements of the Contract Documents.
5. The Contractor has furnished to the County certifications from the Contractor's
Project Manager, in form and substance satisfactory to the County, certifying that the
construction meets the requirements of the Contract Documents.
6. The Contractor has furnished to the County certifications from the Contractor's
Construction Quality Manager, in form and substance satisfactory to the County,
certifying that there are no outstanding non -conformances other than those identified
on the Punch List.
7. The Contractor has ensured that the Project may be used without damage to the
Project or any other property on or off the Site, and without injury to any Person.
8. The Contractor has obtained all applicable third party approvals relating to the Work
and all third parties have completed all work that involves obligations by the
Contractor.
9. The Contractor has ensured that the Project is ready to be opened for traffic and that
no further work is required which would involve any lane or shoulder closure.
20.1.2 Correction of Defects
Upon receipt of the Contractor's notice under Section 20.1.1, the County will conduct such
inspections, surveys, and/or testing as the County deems desirable. If such inspections, surveys,
and/or tests disclose that any Work does not meet the requirements of the Contract Documents,
the County will promptly advise the Contractor as to Nonconforming Work (including
incomplete Work) necessary to be corrected as a condition to Project Completion,
Nonconforming Work (including incomplete Work) which may be corrected as Punch List items
and/or whether the Contractor shall reassess the accuracy and completeness of its notice. Upon
correction of the Nonconforming Work (including incomplete Work) identified as a prerequisite
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to Project Completion, the Contractor shall provide written notification to the County and the
County will conduct additional inspections, surveys and/or tests as the County deems desirable.
This procedure shall be repeated until the County finds that all prerequisites to Project
Completion have been met.
20.1.3 Conditions to Affidavit of Final Completion
The Contractor shall provide to the County an executed sworn Affidavit of Final Completion in
accordance with Section 20.1.3.1 when all of the following have occurred:
1. The County has received all Released for Construction Documents, Design Documents,
As -Built Documents, ROW record maps, surveys, test data, and other deliverables
required under the Contract Documents for the Project.
2. All special tools, equipment, furnishings, and supplies purchased by and/or used by the
Contractor, as provided in the Contract Documents, have been delivered to the County
and all replacement spare parts have been purchased and delivered to the County free and
clear of Liens.
3. All of the Contractor's and Subcontractors' personnel, supplies, equipment, waste
materials, rubbish, and temporary facilities have been removed from the Site, the
Contractor has restored and repaired all damage or injury arising from such removal to
the satisfaction of the County and the Site is in good working order and condition.
4. The Contractor has furnished to the County certifications from the Contractor's Design
Manager, in form and substance satisfactory to the County, certifying that the Design
Documents meet the requirements of the Contract Documents.
5. The Contractor has furnished to the County certifications from the Contractor's Project
Manager, in form and substance satisfactory to the County, certifying that the
construction is in accordance with the Contract Documents.
6. The Contractor has furnished to the County certifications from the Contractor's
Construction Quality Manager, in form and substance satisfactory to the County,
certifying that there are no outstanding non -conformances.
7. The Contractor has delivered to the County a notice of completion for the Project in
recordable form and meeting all statutory requirements.
8. The Punch List items have been completed to the satisfaction of the County; and
9. All of the Contractor's other obligations under the Contract Documents (other than
obligations which by their nature are required to be performed after Final Acceptance as
determined by the County) have been satisfied in full or waived in writing by the County.
10. The Designer and the Contractor agree to assign all warranties and obligations under this
Contract to be the person who has contracted with the County or any division thereof for
the operation, maintenance, and/or repair of the Project.
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20.1.3.1 Requirements of Affidavit of Final Completion
The Affidavit of Final Completion shall include the following statement:
To the best of the Contractor's knowledge and belief the Work under the
Contract has been completed in strict accordance with the Contract Documents,
no lawful debts for labor or materials are outstanding and no federal excise tax
has been included in the Contract Price; all requests for funds for undisputed
work under the Contract, including changes in the Work, and under all billings
of whatsoever nature are accurate, complete and final and no additional
compensation over and above the final payment will be requested or is due
under the Contract or under any adjustment issued there under for said
undisputed work; there are no outstanding claims, Liens or stop notices relating
to the Project, including claims by Utility Owners; there is no existing default by
the Contractor under any Utility Agreement, and no event has occurred which,
with the passing of time or giving of notice or both, would lead to a claim
relating to the Work or event of default under any Utility Agreement; and upon
receipt of final payment, the Contractor and Subcontractors acknowledge that
the County and any and all employees of the County and their authorized
representatives will thereby be released, discharged and acquitted from any and
all claims or liability for additional sums on account of undisputed work
performed under the Contract.
If the Contractor is unable to provide the affidavit in the above form, the affidavit shall certify
that all such outstanding matters are set forth in an attached list which shall describe the
outstanding matters in such detail as may be requested by the County. The affidavit shall include
a representation of the Contractor that it is diligently and in good faith contesting all such matters
by appropriate legal proceedings and shall provide a status report regarding the same including
an estimate of the maximum payable with respect to each such matter.
20.1.4 Inspection and Issuance of Notice of Final Acceptance
Upon the County's receipt of the Affidavit of Final Completion, the County will make final
inspection and the County will either issue a Notice of Final Acceptance or notify the Contractor
regarding any Work remaining to be performed. If the County fails to issue a Notice of Final
Acceptance, the Contractor shall promptly remedy the defective and/or uncompleted portions of
the Work. Thereafter, the Contractor shall provide to the County a revised Affidavit of Final
Completion with a new date based on when the defective and/or uncompleted portions of the
Work were corrected. The foregoing procedure shall apply successively thereafter until the
County has issued a Notice of Final Acceptance.
20.2 Overpayments; No Relief from Continuing Obligations
Final Acceptance will not prevent the County from correcting any measurement, estimate or
certificate made before or after completion of the Work, or from recovering from the Contractor,
the Surety(ies) or both, the amount of any overpayment sustained due to failure of the Contractor
to fulfill the obligations under the Contract. A waiver on the part of the County of any breach by
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the Contractor shall not be held to be a waiver of any other or subsequent breach. Final
Acceptance shall not relieve the Contractor from any of its continuing obligations hereunder, or
constitute any assumption of liability by the County.
20.3 Opening of Sections of Project to Traffic
20.3.1 Plan for Opening to Traffic
The Contract Schedule shall set forth the Contractor's plan for completing Sections of the Project
and opening them to traffic. The County may request that the Contractor expedite certain
Sections of the Project, and the Contractor shall accommodate such requests to the extent that it
can do so without significant disruption to its schedule or a significant increase in its costs.
Notwithstanding the foregoing, if the County orders the Contractor to open portions of the
Project which cannot be accommodated without significant disruption to the Contractor's
schedule or a significant increase in the Contractor's costs, such direction shall be considered a
County -Directed Change.
20.3.2 Direction to Open Following Contractor Failure to Perform
If the Contractor is delinquent in completing shoulders, drainage structures or other features of
the Work, the County may, but is not obligated to, order all or a portion of the Project opened to
traffic notwithstanding such incomplete elements. The Contractor shall then conduct the
remainder of the construction operations, minimizing obstruction to traffic. The Contractor shall
not receive any added compensation due to the added costs attributable to the opening of the
Project to traffic.
20.3.3 No Waiver
Opening of portions of the Project prior to Final Acceptance does not constitute Acceptance of
the Work or a waiver of any provisions of the Contract Documents.
20.3.4 Replacement of Performance Bond
Provided that all conditions to Final Acceptance have occurred, the Contractor shall have the
right to replace the Performance Bond with a replacement performance bond in an amount and in
a form satisfactory to the County in its sole discretion (provided that it shall not be required to
exceed 10 percent of the Contract Price) or with such other security as is Approved by the
County in its sole discretion, guaranteeing due and punctual performance of all obligation of the
Contractor under the Contract Documents which survive Final Acceptance.
20.4 Landscape Acceptance
The County will not give notice of Landscape Acceptance for plants until the end of the
Landscape Establishment Period specified in Book 2, Section 17.
20.5 Assignment of Causes of Action
The Contractor hereby offers and agrees to assign to the County all rights, title and interest in
and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section
15), arising from purchases of goods, services or materials pursuant to the Contract or any
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Subcontract. This assignment shall be made and become effective at the time the County tenders
final payment to the Contractor, without further acknowledgment by the parties.
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21.0 WARRANTIES
21.1 Warranties by Contractor
21.1.1 Project Warranties
The Contractor warrants that:
1. All design Work furnished pursuant to the Contract Documents shall conform to all
professional engineering principles generally accepted as standards of the industry in the
State.
2. The completed Project shall be free of defects (including design Errors except to the
extent that such defects are inherent in prescriptive specifications included in the Basic
Configuration, unless: (i) the Contractor has actual or constructive knowledge of such
defects; and (ii) the Contractor fails to request a change thereto by the County).
3. Materials and equipment furnished under the Contract Documents shall be of good
quality and, when installed, shall be new.
4. The Work shall meet all of the requirements of the Contract Documents.
5. The specifications and/or drawings selected or prepared for use during construction are
appropriate for their intended use.
6. The Project shall be fit for use for the intended function.
7. It shall be a condition to achieving Final Acceptance that the Contractor shall assign all
warranties to the person who has contracted with the County or any division thereof for
the operation, maintenance, and/or repair of the Project.
21.1.2 Transfer of Title
Contractor warrants that it owns, or will own, and has, or will have, good and marketable title to
all materials, equipment, tools and supplies furnished, or to be furnished, by it and its
Subcontractors that become part of the Project or are purchased for the County for the operation,
maintenance, or repair thereof, free and clear of all Liens. Title to all of such materials,
equipment, tools and supplies which shall have been delivered to the Site shall pass to the
County, free and clear of all Liens, upon the sooner of: (i) incorporation into the Project; or
(ii) payment by the County to Contractor of invoiced amounts pertaining thereto.
Notwithstanding any such passage of title, Contractor shall retain sole care, custody and control
of such materials, equipment, tools and supplies, and shall exercise due care with respect thereto
as part of the Work until Final Acceptance or until Contractor is removed from the Project.
21.1.3 Project Warranty Term
The Warranty term for each element of the Project shall commence upon Acceptance thereof by
the County or acceptance thereof by the appropriate Person who will own such element. Subject
to extension under Section 21.2, the Warranties regarding all elements of the Project shall remain
in effect until two years after Final Acceptance. If applicable, the Warranty term for elements of
the Project that will be owned by Persons other than the County (such as Utility Owners) shall
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remain in effect for such longer term as may be required under the applicable agreement. If the
County determines that any of the Work has not met the standards set forth in this Section 21.1 at
any time within the Warranty period, then the Contractor shall correct such Work as specified
below, even if the performance of such corrective work extends beyond the stated warranty
period. The Contractor shall warrant the work for a period of two years from the time of final
acceptance from Weld County.
21.1.4 Corrective Work
Within seven days of receipt by the Contractor of notice from the County specifying a failure of
any of the Work to satisfy the Contractor's Warranties, or of any Subcontractor representation,
warranty, guarantee, or obligation which the Contractor is responsible to enforce, the Contractor
and the County shall mutually agree when and how the Contractor shall remedy such violation;
provided, however, that in case of an emergency as indicated by the County in its notice
requiring immediate curative action, the Contractor and the County shall agree on a remedy
immediately upon notice by the County of such emergency. If the Contractor does not use its
best efforts to proceed to effectuate such remedy within the agreed time, or if the Contractor and
the County fail to reach such an agreement within such 7 Day period (or immediately, in the case
of emergency conditions), then the County, after notice to the Contractor, shall have the right to
perform or have performed by third parties the necessary remedy, and the costs thereof shall be
borne by the Contractor. the County may agree to Accept Nonconforming Work in accordance
with Section 5.7.2.
The County and the Contractor shall conduct a walkthrough of the Site prior to expiration of the
Warranty period and shall produce a Punch List of those items requiring Warranty Work.
21.1.5 Costs of Correction of Work
All costs of correcting such rejected Work, including additional testing and inspections, shall be
deemed included in the Contract Price. The Contractor shall reimburse the County and pay the
County's expenses made necessary thereby within ten days after the Contractor's receipt of
invoice therefore. The Contractor shall be responsible for obtaining any required Governmental
Approvals or other consents from any other Person in connection with the Warranty Work.
21.2 Warranty of Corrected Work
The Warranties shall apply to all Work redone, repaired, corrected or replaced pursuant to the
terms of the Contract. The Warranties as to each redone, repaired, corrected or replaced element
of the Work shall extend beyond the original warranty period if necessary to provide at least a 2 -
year warranty period following Acceptance thereof by the County or acceptance thereof by the
appropriate Person who will own such element.
21.3 Subcontractor Warranties
21.3.1 Assignment
Without in any way derogating the Contractor's own representations and warranties (including
the Warranties) and other obligations with respect to all of the Work, the Contractor shall obtain
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from all Subcontractors and cause to be extended to the County, appropriate representations,
warranties, guarantees and obligations with respect to the design, materials, workmanship,
equipment, tools and supplies furnished by such Subcontractors, including all such
representations, warranties, guarantees, and obligations required to be furnished by
Subcontractors under Book 2. All representations, warranties, guarantees, and obligations of
Subcontractors shall: (i) be written so as to survive all the County and the Contractor inspections,
tests, and approvals; and (ii) run directly to and be enforceable by the Contractor and/or the
County and their respective successors and assigns. The Contractor hereby assigns to the County
all of the Contractor's rights and interest in all extended warranties for periods exceeding the
applicable Warranty period which are received by the Contractor from any of its Subcontractors.
21.3.2 Enforcement
Upon receipt from the County of notice of a failure of any of the Work to satisfy any
Subcontractor warranty, representation, guarantee, or obligation, the Contractor shall enforce or
perform any such representation, warranty, guarantee, or obligation, in addition to the
Contractor's other obligations hereunder. the County's rights under this Section 21.3.2 shall
commence at the time such representation, warranty, guarantee, or obligation is furnished, and
shall continue until the expiration of the Contractor's relevant Warranty (including extensions
thereof under Section 21.2). Until such expiration, the Contractor shall be responsible for the
cost of any equipment, material, labor (including re -engineering) or shipping, and the Contractor
shall be required to replace or repair defective equipment, material or workmanship furnished by
any Subcontractor.
21.4 No Limitation of Liability
The foregoing warranties are in addition to all rights and remedies available under the Contract
Documents or applicable law, and shall not limit the Contractor's liability or responsibility
imposed by the Contract Documents or applicable law with respect to the Work, including
liability for design defects, latent construction defects, strict liability, negligence or fraud;
provided, however, that, upon expiration of the Warranties, the Contractor shall have no further
liability to the County hereunder for patent construction defects.
21.5 Warranty Beneficiaries
In addition to benefiting the County and its successors and assigns, the Warranties and
Subcontractor warranties provided under this Section 21 shall inure to the benefit of, and shall be
directly enforceable by, any local agencies and Utility Owners with respect to those portions of
the Work owned or controlled by each such Person.
21.6 Remedies for Breach of Warranty
In addition to the County's other rights and remedies hereunder, at law or in equity, the
Contractor shall be liable for actual damages resulting from any breach of an express or implied
warranty or any defect in the Work.
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21.7 Disputes
Any disagreement between the County and the Contractor relating to this Section 21 shall be
subject to the dispute resolution provisions contained in Section 19, provided that the Contractor
shall proceed as directed by the County pending resolution of the dispute.
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22.0 DOCUMENTS AND RECORDS
22.1 Escrowed Proposal Documents
Within three days after the Proposal Due Date, the Contractor shall have delivered its Escrowed
Proposal Documents (EPD) to the County in a manner agreed to between the County and the
Contractor. Concurrently with submission of quotations or revisions to quotations provided in
connection with formally proposed amendments to the Contract and concurrently with Approval
of each Change Order, if appropriate, one copy of all documentary information used in
preparation of the quotation or Change Order shall be added to the EPD. The EPD will be held
in such cabinet or otherwise maintained subject to Section 22.1.1 until all of the following have
occurred: (i) 180 days have elapsed after expiration or earlier termination of the Warranties;
(ii) all Disputes regarding the Contract have been settled, and (iii) final payment on the Contract
has been made by the County and accepted by the Contractor.
22.1.1 Review of Escrowed Proposal Documents
The EPD shall be available during business hours for joint review by the Contractor and the
County in connection with the resolution of Disputes, an audit under Section 22.3.5 (if the EPD
are the subject of an audit) and as described in Section 22.1.6. The County shall be entitled to
review all or any part of the EPD in order to satisfy itself regarding the applicability of the
individual documents to the matter at issue. The County shall be entitled to make and retain
copies of such documents as it deems appropriate in connection with any such matters, provided
that the County has executed and delivered to the Contractor a confidentiality agreement
specifying that all proprietary information contained in such documents will be kept confidential,
that copies of such documents will not be distributed to any third parties other than the County's
agents, attorneys, and experts, the Dispute Resolution Board (DRB), and that all copies of such
documents will be either destroyed or returned to the depository (or to the Contractor if the EPD
have been returned to it) upon final resolution of the Disputes. The foregoing shall in no way be
deemed a limitation on the County's discovery rights with respect to such documents.
22.1.2 Property of Contractor
The EPD are, and shall always remain, the property of the Contractor, and shall be considered to
be in the Contractor's possession, subject to the County's right to review the EPD as provided
herein. The County acknowledges that the Contractor considers that the EPD constitute trade
secrets or proprietary information. This acknowledgment is based upon the County's
understanding that the information contained in the EPD are not known outside the Contractor's
business, is known only to a limited extent and by a limited number of employees of the
Contractor, is safeguarded while in the Contractor's possession, and may be valuable to the
Contractor's business strategies, assumptions, and intended means, methods, and techniques.
The County further acknowledges that the Contractor expended money in developing the
information included in the EPD and further acknowledges that it would be difficult for a
competitor to replicate the information contained therein. The County acknowledges that the
EPD and the information contained therein are being provided to the County only because it is an
express prerequisite to award of the Contract.
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22.1.3 Representation and Warranty
The Contractor represents and warrants that the EPD provided concurrently with the Proposal
constitute all of the information used in the preparation of its Proposal and agrees that no other
Proposal preparation information will be considered in resolving Disputes or Claims.
The Contractor also agrees that the EPD are not part of the Contract and that nothing in the EPD
shall change or modify the Contract.
22.1.4 Contents of Escrowed Proposal Documents
The EPD provided with the Proposal shall at a minimum, clearly detail how the components of
the Fixed Contract Price were determined and shall be adequate to enable a complete
understanding and interpretation of how the Contractor arrived at the Fixed Contract Price. The
EPD provided in connection with quotations and Change Orders shall, inter alia, clearly detail
how the total price and individual components of that price were determined and shall be
adequate to enable a complete understanding and interpretation of how the Contractor arrives at
its quotation and/or Change Order price. All Work shall be separated into subitems as required
to present a complete and detailed estimate of all costs. Crews, equipment, quantities, and rates
of production shall be detailed. Estimates of costs shall be further divided into the Contractor's
usual cost categories such as direct labor, repair labor, equipment ownership and operation,
expendable materials, permanent materials, and subcontract costs as appropriate. Plant and
equipment and indirect costs shall also be detailed in the Contractor's usual format. The
Contractor's allocation of plant and equipment, indirect costs, contingencies, mark-up, and other
items to each direct cost item shall be clearly identified. The EPD shall itemize the estimated
costs of the Payment and Performance Bond and the insurance premiums for each coverage
required to be provided by the Contractor under Section 9. The EPD shall include all
assumptions, quantity takeoffs, rates of production, the Contractor internal equipment rental rates
and progress calculations, quotes from Subcontractors (including Suppliers), memoranda,
narratives, and all other information used by the Contractor to arrive at the Fixed Contract Price
or Change Order price, as applicable. For each item of Work, the EPD shall itemize any related
amounts not included in the stated price for such item such as any amount allocated for
contingency.
22.1.5 Format of Escrowed Proposal Documents
The Contractor shall submit the EPD in the format actually used by the Contractor in preparing
its Proposal. It is not intended that the Contractor perform any significant extra work in the
preparation of these documents. However, the Contractor represents and warrants that the EPD
related to the Proposal have been personally examined prior to delivery to the County by an
authorized officer of the Contractor and that they meet the requirements of Section 22.1.4 and
are adequate to enable a complete understanding and interpretation of how the Contractor arrived
at its Fixed Contract Price. The Contractor further represents, warrants, and covenants that the
EPD related to each Change Order will be personally examined prior to delivery to escrow by an
authorized officer of the Contractor and that they meet the requirements of Section 22.1.4 and
will be adequate to enable a complete understanding and interpretation of how the Contractor
arrived at its Change Order price.
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22.1.6 Review by the County
The County may, at any time, conduct a review of the EPD.to determine whether it is complete.
If the County determines that the EPD are incomplete, the County may request the Contractor to
supply data to make the EPD complete. The Contractor shall provide all such data within three
Working Days of the request, and at that time it will be date stamped, labeled to identify it as
supplementary EPD information and added to the EPD. The Contractor shall have no right to
add documents to the EPD except upon the County's request. At the County's option, which
may be exercised at any time, the EPD associated with any Change Order or contract amendment
shall be reviewed, organized, and indexed as described in the ITP, Section 5.12.
22.1.7 Confidentiality
The EPD shall at all times be treated as proprietary and confidential non-public information and
shall be used only for purposes described in Section 22.1.1. At the Contractor's request,
confidentiality agreements shall be executed and delivered to the Contractor by the County's
employees or agents who review or have access to the EPD.
22.2 Subcontractor Pricing Documents
The Contractor shall require each first tier Subcontractor to submit to the Contractor a copy of all
documentary information used in determining its Subcontract price, immediately prior to
executing the Subcontract or Change Orders or amendments thereto, to be held in the same
manner as the EPD and which shall be accessible by the Contractor, the County, the DRB, and
other dispute resolvers, on terms substantially similar to those contained herein. Each such
Subcontract shall include a representation and warranty from the Subcontractor stating that its
EPD constitutes all the documentary information used in establishing its Subcontract price. Each
Subcontract that is not subject to the foregoing requirement shall include a provision that
requires the Subcontractor to preserve all documentary information used in establishing its
Subcontract price and to provide such documentation to the Contractor and/or the County in
connection with any disputed change order made by such Subcontractor.
22.3 Project Records
22.3.1 Maintenance of Records
The Contractor shall maintain at the Contractor's Project Manager's office in the State a
complete set of all books, records and documents prepared or employed by the Contractor with
respect to the Project.
22.3.2 Audit and Inspection Rights
The Contractor shall grant to the County and its authorized representatives, such audit and
inspection rights and allow such Persons such access to and the right to copy such books and
records (including all tax returns and supporting documentation filed with any Governmental
Persons) as such Persons may reasonably request from time to time in connection with the
issuance of Change Orders, the resolution of disputes, and such other matters as such Persons
reasonably deems necessary for purposes of complying or verifying compliance with the
Contract and Legal Requirements, including responding with requests pursuant to the Colorado
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Open Records Act. The Contractor shall grant to Utility Owners and their respective authorized
representatives, such audit and inspection rights and all such Persons access to and the right to
copy such books and records as such Persons may request in connection with the resolution of
disputes or such other matters as such Persons reasonably deems necessary for purposes of
complying or verifying compliance with the Utility -related Contractual or Utility Agreement
requirements.
22.3.3 Audit of Time and Materials Work
Where the payment method for any Work is on a time and materials basis, such examination and
audit rights shall include all books, records, documents and other evidence and accounting
principles and practices sufficient to reflect properly all direct and indirect costs of whatever
nature claimed to have been incurred and anticipated to be incurred for the performance of such
Work. If an audit indicates the Contractor has been over -credited under a previous progress
report or progress payment, that overcredit will be credited against current progress reports or
payments.
22.3.4 Change Order Pricing Data
For cost and pricing data submitted in connection with pricing Change Orders, unless such
pricing is based on adequate price competition, established catalog or market prices of
commercial items sold in substantial quantities to the public, or prices set by law or regulation,
such Persons and their representatives have the right to examine all books, records, documents,
and other data Contractor related to the negotiation of or performance of Work under such
Change Orders for the purpose of evaluating the accuracy, completeness and currency of the cost
or pricing data submitted. The right of examination shall extend to all documents deemed
necessary by such Persons to permit adequate evaluation of the cost or pricing data submitted,
along with the computations and projections used therein.
22.3.5 Claims Audits
All Claims filed against the County shall be subject to audit at any time following the filing of
the Claim. The audit may be performed by employees of the County or by an auditor under
contract with the County. No notice is required before commencing any audit before 60 days
after Final Acceptance. Thereafter, the County shall provide 20 days notice to the Contractor,
any Subcontractors or their respective agents before commencing an audit. The Contractor,
Subcontractors or their agents shall provide adequate facilities, acceptable to the County, for the
audit during normal business hours. The Contractor, Subcontractors, and their agents shall
cooperate with the auditors. Failure of the Contractor, Subcontractors, or their agents to
maintain and retain sufficient records to allow the auditors to verify all or a portion of the Claim
or to permit the auditors access to the books and records of the Contractor, Subcontractors, or
their agents shall constitute a waiver of the claim and shall bar any recovery there under. At a
minimum, the auditors shall have available to them the following documents:
1. Daily time sheets and supervisor's daily reports.
2. Union agreements.
3. Insurance, welfare, and benefits records.
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4. Payroll registers.
5. Earnings records.
6. Payroll tax forms.
7. Material invoices and requisitions.
8. Material cost distribution worksheet.
9. Equipment records (list of company equipment, rates, etc.).
10. Subcontractors' (including Suppliers) and agents' invoices.
11. Subcontractors' and agents' payment certificates.
12. Canceled checks (payroll and Suppliers).
13. Job cost report.
14. Job payroll ledger.
15. General ledger.
16. Cash disbursements journal.
17. E-mail, letters, and correspondence.
18. Network servers, data storage devices, backup media.
19. All documents that relate to each and every Claim together with all documents that
support the amount of damages as to each Claim.
20. Work sheets used to prepare the Claim establishing the cost components for items of the
Claim including labor, benefits and insurance, materials, equipment, Subcontractors, all
documents that establish the time periods, individuals involved, the hours for the
individuals and the rates for the individuals.
Full compliance by the Contractor with the provisions of this Section 22.3.5 is a contractual
condition precedent to the Contractor's right to seek relief under Section 19. The Contractor
represents and warrants the completeness and accuracy of all information it or its agents provides
in connection with this Section 22.3.
22.4 Retention of Records
The Contractor shall maintain all records and documents relating to the Contract (including
copies of all original documents delivered to the County) at the Contractor's Project Manager's
office in the State until seven years after the earlier to occur of: (i) the date Final Acceptance is
achieved; or (ii) the termination date. If Approved by the County, photographs,
microphotographs, or other authentic reproductions may be maintained instead of original
records and documents. The Contractor shall notify the County where such records and
documents are kept.
Notwithstanding the foregoing, all records which relate to Claims being processed or actions
brought under the dispute resolution provisions hereof shall be retained and made available until
such actions and Claims have been finally resolved. Records to be retained include all books and
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other evidence bearing on the Contractor's costs and expenses under the Contract Documents.
The Contractor shall make these records and documents available for audit and inspection to the
County, at the Contractor's office, at all reasonable times, without charge, and shall allow such
Persons to make copies of such documents (at no expense to the Contractor).
22.5 Colorado Open Records Act
22.5.1 Applicability of Act
The Contractor acknowledges and agrees that all records, documents, drawings, plans,
specifications, and other materials including the EPDs in the Contractor's or the County's
possession directly related to the Project, including materials submitted to the County by the
Contractor, are subject to the provisions of the Colorado Open Records Act. The Contractor
shall be solely responsible for all determinations made by it under such Act and for clearly and
prominently marking each and every page or sheet of its materials with trade secret, privileged
information, or confidential commercial, financial, geological, or geophysical data as it
determines to be appropriate. The Contractor is advised to contact legal counsel concerning such
act and its application to the Contractor.
22.5.2 Confidential Materials
If any of the materials submitted by the Contractor to the County are clearly and prominently
labeled trade secret, privileged information, or confidential commercial, financial, geological, or
geophysical data by the Contractor, the County will endeavor to advise the Contractor of any
request for the disclosure of such materials prior to making any such disclosure.
Under no circumstances, however, will the County be responsible or liable to the Contractor or
any other Person for the disclosure of any such labeled materials, whether the disclosure is
required by law, by court order or occurs through inadvertence, mistake or negligence on the part
of the County, except for any disclosure of trade secrets or proprietary information in violation of
the confidentiality agreement described in Section 22.1.1.
22.5.3 Contractor to Defend Against Disclosure Request
In the event of litigation concerning the disclosure of any material submitted by the Contractor to
the County, the County's sole involvement will be as a stakeholder retaining the material until
otherwise ordered by a court, and the Contractor shall be fully responsible for otherwise
prosecuting or defending any action concerning the materials at its sole expense and risk.
22.5.4 Cooperation with the County Regarding Colorado Open Records Act Requests
In the event the County receives a Colorado Open Records Act request for documents that are in
the custody and control of the Contractor, the Contractor shall cooperate with the County in
responding to the request in a timely manner under the Colorado Open Records Act.
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PROJECT NO. B2400039
Book 1 - Contract
23.0 COOPERATION AND COORDINATION WITH OTHERS
23.1 Cooperation with Other Contractors
The County reserves the right to perform and to contract with others to perform other or
additional work on or near the Site. The Contractor shall cooperate with the County and such
other contractors to the extent reasonably necessary for the performance by the County and such
other contractors of their work, and shall cause its employees, agents, officers, and
Subcontractors and other Persons for whom the Contractor may be contractually or legally
responsible to so cooperate. If other separate contracts are awarded by the County, which affect
the Work, the Contractor shall conduct its Work without interfering with or hindering the
progress or completion of the work being performed by other contractors.
23.2 Interference by Other Contractors
If the Contractor asserts that any of the County's other contractors have hindered or interfered
with the progress or completion of the Work, then the Contractor's sole remedy shall be to seek
recourse against such other contractors.
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PROJECT No. B2400039
Book 1 - Contract
24.0 MISCELLANEOUS PROVISIONS
24.1 Amendments
The Contract may be amended only by a written instrument duly executed by the parties or their
respective successors or assigns.
24.2 Waiver
24.2.1 No Waiver of Subsequent Rights
Either party's waiver of any breach or failure to enforce any of the terms, covenants, conditions,
or other provisions of the Contract Documents at any time shall not in any way limit or waive
that party's right thereafter to enforce or compel strict compliance with every term, covenant,
condition or other provision, any course of dealing or custom of the trade notwithstanding.
Furthermore, if the parties make and implement any interpretation of the Contract Documents
without documenting such interpretation by an instrument in writing signed by both parties, such
interpretation and implementation thereof will not be binding in the event of any future Disputes.
The consent by one party to any act by the other party requiring such consent shall not be
deemed to render unnecessary the obtaining of consent to any subsequent act for which consent
is required, regardless of whether similar to the act for which consent is given.
24.2.2 Custom Does not Constitute Waiver
No act, delay, or omission done, suffered or permitted by one party or its agents shall be deemed
to waive, exhaust, or impair any right, remedy, or power of such party under any Contract
Document, or to relieve the other party from the full performance of its obligations under the
Contract Documents. No custom or practice between the parties in the administration of the
terms of the Contract Documents shall be construed to waive or lessen the right of a party to
insist upon performance by the other party in strict compliance with the terms of the Contract
Documents.
24.2.3 Waivers Must be in Writing
No waiver of any term, covenant or condition of the Contract Documents shall be valid unless in
writing and signed by the party providing the waiver.
24.3 Successors and Assigns
The Contract Documents shall be binding upon and inure to the benefit of the County and the
Contractor and their permitted successors, assigns and legal representatives.
24.3.1 Assignment by County
The County may assign all or part of its right, title and interest in and to the Contract, including
rights with respect to the surety bonds required hereunder and any other performance security
provided, to any Person with the prior written approval of the Contractor.
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Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
24.3.2 Assignment by Contractor
The Contractor may assign its rights to receive payment under the Contract Documents and may
subcontract Work in accordance with the State Law and in compliance with the requirements of
the Contract Documents.
The Contractor shall not otherwise sublet, transfer, assign or dispose of any portion of the
Contract, or delegate any of its duties hereunder, except with the County's prior written
Approval. The Contractor's assignment or delegation of any of its Work under the Contract
Documents shall be ineffective to relieve the Contractor of its responsibility for the Work
assigned or delegated, unless the County, in its sole discretion, has Approved such relief from
responsibility.
24.4 Designation of, and Cooperation with Representatives
24.4.1 Designation of Representatives
Concurrently with execution hereof, the County and the Contractor shall each designate an
individual or individuals who shall be authorized to make decisions and bind the parties on
matters relating to the Contract Documents. Such designations may be changed by a subsequent
writing delivered to the other party in accordance with Section 24.10. The parties may also
designate technical representatives who shall be authorized to investigate and report on matters
relating to the construction of the Project and negotiate on behalf of each of the parties but who
do not have authority to bind the County or the Contractor.
Weld County shall have the right to remove any member of the Contractor's staff from the
Project, at any time, for any reason. This is a two-year partnership between Weld County and the
Contractor and a good relationship must be maintained at all times. Upon receipt of written
notification from the County, the Contractor shall remove the individual within 24 hours and
submit a written replacement request. This shall not be cause for a delay to the Project or warrant
a time extension.
24.4.2 Cooperation
The Contractor shall cooperate with the County and all representatives of the County designated
as described above.
24.5 Gratuities
Neither the Contractor nor any of its employees, agents and representatives shall offer or give to
an officer, official, or employee of the County gifts, entertainment, payments, loans, or gratuities.
The Contractor represents and warrants that it has not previously offered or given any gifts,
entertainment, payments, loans, or gratuities in violation of such prohibitions.
24.6 Survival
The dispute resolution provisions contained in Section 19, and all other provisions, which by
their inherent character should survive termination of the Contract, shall survive the termination
of the Contract.
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PROJECT No. B2400039
Book 1 - Contract
24.7 Limitation on Third -Party Beneficiaries
It is not intended by any of the provisions of the Contract Documents to create any third -party
beneficiary hereunder, or to authorize anyone not a party hereto to maintain a suit for personal
injury or property damage pursuant to the terms or provisions hereof, except to the extent that
specific provisions (such as the warranty and indemnity provisions) identify third parties and
state that they are entitled to benefits hereunder. The duties, obligations, and responsibilities of
the parties to the Contract Documents with respect to such third parties shall remain as imposed
by law. The Contract Documents shall not be construed to create a contractual relationship of
any kind between the County and a Subcontractor or any other Person except the Contractor.
24.8 No Personal Liability
The County's authorized representatives are acting solely as agents and representatives of the
County when carrying out the provisions of or exercising the power or authority granted to them
under the Contract Documents. They shall not be liable either personally or as employees of the
County for actions in their ordinary course of employment.
24.9 Notices and Communications
24.9.1 Delivery of Notices
Notices under the Contract Documents shall be in writing and: (i) delivered personally; (ii) sent
by certified mail, return receipt requested; (iii) sent by a recognized overnight mail or courier
service, with delivery receipt requested; or (iv) sent by facsimile communication followed by a
hard copy or with receipt confirmed by telephone, to the following addresses (or to such other
address as may from time to time be specified in writing by such Person):
All correspondence with the Contractor shall be sent to the Contractor's Project Manager or as
otherwise directed by such Project Manager. The address for such communications shall be:
Mike McNish, Vice President/Area Manager & Sponser
Kraemer North America, LLC
900 West Castleton Road, Suite 220
Castle Rock, Colorado 80109
MMcNish@KraemerNA.com
All communications to the County shall be marked with the County's project identification
number and shall be delivered to the County's Project Manager, with copies to such additional
Persons as may be designated by the County's Project Manager, at the address set forth below:
Cameron Parrott, Sr. Engineer
Weld County Public Works Department
1111 H Street
Greeley, Colorado 80632
cparrott@weldgov.com
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PROJECT NO. B2400039
Book 1 - Contract
In addition, copies of all notices regarding disputes, termination, and default notices shall be
delivered to the following person(s):
Bruce Barker
Weld County Attorney
1150 `O' Street
Greeley, Colorado 80632
Telephone: (970) 336-7235
Fax: (970) 352-0242
bbarker@weldgov.com
24.9.2 Receipt of Notices
Notices shall be deemed received when actually received in the office of the addressee (or by the
addressee if personally delivered) or when delivery is refused, as shown on the receipt of the U.
S. Postal Service, private carrier or other Person making the delivery. Notwithstanding the
foregoing, notices sent by fax after 4:00 p.m. Mountain Standard or Daylight Time (as
applicable) and all other notices received after 5:00 p.m. Mountain Standard or Daylight Time
(as applicable) shall be deemed received on the first Working Day following delivery (that is, in
order for a fax to be deemed received on the same day, at least the first page of the fax must have
been received before 4:00 p.m.).
24.9.3 Copies of Correspondence to County
The Contractor shall copy the County on all written correspondence pertaining to the Contract
between the Contractor and any Person other than the Contractor's Subcontractors, consultants
and attorneys.
24.10 Further Assurances
The Contractor shall promptly execute and deliver to the County all such instruments and other
documents and assurances as are reasonably requested by the County to further evidence the
obligations of the Contractor hereunder, including assurances regarding assignments of
Subcontractors contained herein.
24.11 Severability
If any clause, provision, Section or part of the Contract is ruled invalid under Section 20 or
otherwise by a court of competent jurisdiction, then the parties shall: (i) promptly meet and
negotiate a substitute for such clause, provision, Section or part, which shall, to the greatest
extent legally permissible, effect the original intent of the parties, including an equitable
adjustment to the Contract Price to account for any change in the Work resulting from such
invalidated portion; and (ii) if necessary or desirable, apply to the court or other decision maker
(as applicable) which declared such invalidity for an interpretation of the invalidated portion to
guide the negotiations. The invalidity or unenforceability of any such clause, provision, Section
or part shall not affect the validity or enforceability of the balance of the Contract, which shall be
115
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
construed and enforced as if the Contract did not contain such invalid or unenforceable clause,
provision, Section or part.
24.12 Headings
The captions of the Sections of the Contract Documents are for convenience only and shall not
be deemed part of the Contract or considered in construing the Contract.
24.13 Governing Law
The Contract Documents shall be governed by and construed in accordance with the law of the
State of Colorado. Venue for any legal action in connection with the Contract shall lie in the
Weld County District Court.
24.14 Compliance with Law
Contractor shall strictly comply with all applicable federal and State laws, rules and regulations
in effect or hereafter established, including without limitation, laws applicable to discrimination
and unfair employment practices.
24.15 Entire Agreement
The Contract Documents contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements, understandings, statements,
representations and negotiations between the parties with respect to its subject matter.
24.16 Counterparts
This instrument may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
24.17 Binding Arbitration Prohibited
Weld County does not agree to binding arbitration by any extra judicial body or person. Any
provision to the contrary in this Agreement or incorporated herein by reference shall be null and
void.
24.18 Board of County Commissioners of Weld County Approval
This Agreement shall not be valid until it has been approved by the Board of County
Commissioners of Weld County, Colorado or its designee.
24.19 Choice of Law/Jurisdiction
Colorado law, and rules and regulations established pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Agreement. Any provision included or
incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be
null and void. In the event of a legal dispute between the parties, Contractor agrees that the Weld
County District Court shall have exclusive jurisdiction to resolve said dispute.
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PROJECT NO. B2400039
Book 1 - Contract
24.20 Governmental Immunity
No term or condition of this contract shall be construed or interpreted as a waiver, express or
implied, of any of the immunities, rights, benefits, protections or other provisions, of the
Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter
amended.
24.21 Employee Financial Interest/Conflict of Interest — C.R.S. §§24-18-201 et seq. and
§24-50-507
The signatories to this Agreement agree that to their knowledge, no employee of Weld County
has any personal or beneficial interest whatsoever in the service or property which is the subject
matter of this Agreement. County has no interest and shall not acquire any interest direct or
indirect, that would in any manner or degree interfere with the performance of Contractor's
services and Contractor shall not employ any person having such known interests. During the
term of this Agreement, Contractor shall not engage in any in any business or personal activities
or practices or maintain any relationships which actually conflicts with or in any way appear to
conflict with the full performance of its obligations under this Agreement. Failure by Contractor
to ensure compliance with this provision may result, in County's sole discretion, in immediate
termination of this Agreement. No employee of Contractor nor any member of Contractor's
family shall serve on a County Board, committee or hold any such position which either by rule,
practice or action nominates, recommends, supervises Contractor's operations, or authorizes
funding to Contractor.
24.22 Public Contracts for Services C.R.S. §8-17.5-101
Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an
illegal alien who will perform work under this contract. Contractor will confirm the employment
eligibility of all employees who are newly hired for employment in the United States to perform
work under this Agreement, through participation in the E -Verify program of the State of
Colorado program established pursuant to C.R.S. §8-17.5-102(5)(c). Contractor shall not
knowingly employ or contract with an illegal alien to perform work under this Agreement or
enter into a contract with a subcontractor that fails to certify with Contractor that the
subcontractor shall not knowingly employ or contract with an illegal alien to perform work under
this Agreement. Contractor shall not use E -Verify Program or State of Colorado program
procedures to undertake pre -employment screening or job applicants while this Agreement is
being performed. If Contractor obtains actual knowledge that a subcontractor performing work
under the public contract for services knowingly employs or contracts with an illegal alien
Contractor shall notify the subcontractor and County within three (3) days that Contractor has
actual knowledge that a subcontractor is employing or contracting with an illegal alien and shall
terminate the subcontract if a subcontractor does not stop employing or contracting with the
illegal alien within three (3) days of receiving notice. Contractor shall not terminate the contract
if within three days the subcontractor provides information to establish that the subcontractor has
not knowingly employed or contracted with an illegal alien. Contractor shall comply with
reasonable requests made in the course of an investigation, undertaken pursuant to C.R.S. §8-
117
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates
in the State of Colorado program, Contractor shall, within twenty days after hiring a new
employee to perform work under the contract, affirm that Contractor has examined the legal
work status of such employee, retained file copies of the documents, and not altered or falsified
the identification documents for such employees. Contractor shall deliver to County, a written
notarized affirmation that it has examined the legal work status of such employee, and shall
comply with all of the other requirements of the State of Colorado program. If Contractor fails to
comply with any requirement of this provision or of C.R.S. §8-17.5-101 et seq., County, may
terminate this Agreement for breach, and if so terminated, Contractor shall be liable for actual
and consequential damages.
24.23 Acknowledgment
County and Contractor acknowledge that each has read this Agreement, understands it and
agrees to be bound by its terms. Both parties further agree that this Agreement, including all
attachments, exhibits, and other documents incorporated herein, are the complete and exclusive
statement of agreement between the parties and supersedes all proposals or prior agreements,
oral or written, and any other communications between the parties relating to the subject matter
of this Agreement.
118
Weld County, Colorado
PROJECT No. B2400039
Book I - Contract
WITNESS WHEREOF, the parties hereto have signed this Agreement this / / day of
, 2024.
TR ' TOR:
Kraemer No • merica, LLC
By:
Name:
Title: Sr. Vice President
WELDATTEST: CC LO
Ci• ;,1
�
Weld County Clerk to the Board
Date 7/15/24
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Kevin D. Ross, Chair
JUL 1 7 2024
119
aoa�_o38�
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
EXHIBIT A - ACRONYMS AND DEFINITIONS
120
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
As used in the Design/Build Contract to which this Exhibit is attached, and in the other Contract
Documents (unless otherwise specified therein), the following acronyms and terms shall have the
meanings set forth below.
A.1 ACRONYMS
AADT
AAN
AAP
AAR
AASHTO
Ac
ATC
ACHP
ACI
ACM
ADA
ADT
AEIC
AGC
AI
AIA
AISC
AISI
AITC
AMRL
ANSI
ARA
ARE
AREA
AREMA
ARTBA
ASCE
ASCII
ASLA
ASME
ASTM
ATC
ATMS
ATR
ATSSA
AWG
AWPA
AWS
AWWA
BAFO
Annual Average Daily Traffic
American Association of Nurserymen
AASHTO Accreditation Program
Association of American Railroads
American Association of State Highway & Transportation Officials
Alternating Current
Alternative Technical Concepts
Advisory Council on Historic Preservation
American Concrete Institute
Asbestos -Containing Materials
Americans with Disabilities Act
Average Daily Traffic
Association of Edison Illuminating Companies
Associated General Contractors of America, Inc.
Asphalt Institute
American Institute of Architects
American Institute of Steel Construction
American Iron & Steel Institute
American Institute of Timber Construction
AASHTO Materials Reference Laboratory
American National Standards Institute (formerly ASA and USASI)
American Railway Association
Additional Requested Element
American Railway Engineering Association
American Railway Engineering & Maintenance Association
American Road & Transportation Builders Association
American Society of Civil Engineering
American Standard Code of Information Interchange
American Society of Landscape Architects
American Society of Mechanical Engineers
American Society for Testing & Materials
Applied Technology Council
Advanced Traffic Management System
Automatic Traffic Recorder
American Traffic Safety Services Association
American Wire Gauge
American Wood Preservers' Association
American Welding Society
American Water Works Association
Best and Final Offer
121
BATCD
BE
BMP
CADD
CBCP
CCA
CCI
CCR
CCTV
CAPCDQ
CDNR
CD
CDOT
CDPHE
CDW
CERCLA
CFR
CHP
CIH
CIP
CMS
COE
COM
CP
CPM
CQMP
C.R.S.
CRSI
CRT
CSEO
CSL
CTMC
CURPAL
D/B
dB
DBE
DCS
DRB
DTM
DWG
EA
ECM
ECP
ECS
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Basic and Temporary Configuration Diagram
Colorado Bridge Enterprise
Best Management Practices
Computer -Assisted Drafting and Design
Category B Change Proposal
Colorado Contractors Association
Construction Cost Index
Colorado Code of Regulations
Closed Circuit Television
Colorado Air Pollution Control Division
Colorado Department of Natural Resources
Collector -Distributor
Colorado Department of Transportation
Colorado Department of Public Health & Environment
Colorado Division of Wildlife
Comprehensive Environmental Response, Compensation & Liability
Act, 42 U.S.C. §§ 9601, et. seq.
Code of Federal Regulations
Colorado Highway Patrol
Certified Industrial Hygienist
Cost in Place
Changeable Message Sign
(U.S.) Army Corps of Engineers
Communications
Colorado Procedure
Critical Path Method
Construction Quality Management Plan
Colorado Revised Statutes
Concrete Reinforcing Steel Institute
Console Monitor (Cathode Ray Tube)
Colorado State Engineer's Office
Cross Sonic Log
Colorado Traffic Management Center
Contractor Utility Relocation Plan Acceptance Letter
Design/Build
Decibels
Disadvantaged Business Enterprise
Document Control System
Dispute Resolution Board
Digital Terrain Model
Drawing
Environmental Assessment
Environmental Compliance Manager
Emissions Control Plan
Erosion Control Supervisor
122
EEO
EIA
EIP
EPA
EPD
FAR
FCMs
FEMA
FHWA
FIR
FRA
FTP
GAAP
HASP
HBP
HDPE
HIRSYS
HLMR
IEEE
IEQM
IES
IGA
IIMS
IL
IMP
IMSA
IPCEA
IRI
ISA
ISDN
ISO
ISP
ITC
ITE
ITP
ITS
KW
LAN
LAPB
Lc
Ls
LED
LLRU
LRFD
LS
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Equal Employment Opportunity
Electronic Industries Association
Environmental Investigation Plan
(U.S.) Environmental Protection Agency
Escrowed Proposal Documents
Federal Acquisition Regulation
Fracture Critical Members
Federal Emergency Management Agency
Federal Highway Administration
Field Inspection Review
Federal Railroad Administration
File Transfer Protocol
Generally Accepted Accounting Principles
Health and Safety Plan
Hot Bituminous Pavement
High -density polyethylene
Hotline Information Retrieval System
Highload multi -rotational
Institute of Electrical & Electronics Engineers
Independent Environmental Quality Manager
Illuminating Engineering Society
Intergovernmental Agreement
Incident Information Management System
Information Liaison
Incident Management Plan
International Municipal Signal Association
Insulated Power Cable Engineers Association
International Roughness Index
Initial Site Assessment
Integrated Services Digital Network
International Organization for Standards
Information or Internet Service Providers
Interface Terminal Cabinet
Institute of Transportation Engineers
Instructions to Proposers
Intelligent Transportation Systems
Kilowatt
Local Area Network
Link Access Protocol, Balanced
Length of Simple Curve
Length of Spiral Curve
Light Emitting Diode
Lowest Level Replaceable Unit
Load and resistence factor design
Line Section
123
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
LTDS
MACM
MARV
Mb
Mbps
MBTA
MESA
MHT
MIL
MIS
Mm
MMIS
MMP
MMU
MOA
MOT
MOU
Mph
MSE
MTIP
MUTCD
NAD
NAVD
NBIS
NBS
NCHRP
NCR
NEC
NEMA
NEPA
NESC
NESHAP
NFPA
NGS
NHS
NICET
NIOSH
NIST
NPDES
NSF
NTCIP
NTP
NTS
NWN
OCIP
Long-term design strength
Maximum Achievable Control Measures
Minimum average roll value
Megabit
Megabits per Second
Migratory Bird Treaty Act
Modified Environmental Site Assessment
Method for Handling Traffic
Military Specification
Management Information System
Millimeter
Maintenance Management Information System
Materials Management Plan
Malfunction Management Unit
Memorandum of Agreement
Maintenance of Traffic
Memorandum of Understanding
Miles per Hour
Mechanically Stabilized Earth
Materials Testing and Inspection Plan
Manual on Uniform Traffic Control Devices
North American Datum
North American Vertical Datum
National Bridge Inspection Standards
National Bureau of Standards
National Cooperative Highway Research Program
Nonconformance Report
National Electrical Code (NFPA-70)
National Electrical Manufacturers Association
National Environmental Policy Act
National Electrical Safety Code
National Emissions Standards for Hazardous Air Pollutants
National Fire Protection Association
National Geodetic Survey
National Highway System
National Institute for Certification in Engineering Technologies
National Institute for Occupational Safety & Health
National Institute of Standards & Technology
National Pollution Discharge Elimination System
National Sanitation Foundation (nSf)
National Transportation Communications for I.T.S. Protocol
Notice to Proceed
Not to Scale
Nonconforming Work Notice
Owner Controlled Insurance Policy
124
OSHA
OURPAL
PCCP
PCI
PCO
PCP
PDA
PE
PET
PG
PIP
PIV
PLS
PM
PP
PPE
PQCI
PQCT
PRI
PSI
PSR
Pt
PTFE
PUC
PVC
PVI
PVT
PWR
QA
QC
QCP
QM
QMS
QPM
QWEST
R
RACM
RCO
RCP
RCRA
RE
RECs
RFC
RFP
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Occupational Safety & Health Administration
Owner Utility Relocation Plan Acceptance Letter
Portland Cement Concrete Pavement
Prestressed Concrete Institute
Potential Change Order
Product Control Plan
Pile -Driving Analyzer or Personal Digital Assistant
Professional Engineer, or, in the context of right-of-way, PE shall
mean Permanent Easements
Polyester
Performance Grade
Public Information Plan
Peak Inverse Voltage
Professional Land Surveyor
Program Manager
Polyester polypropylene
Personal Protection Equipment
Process Quality Control Inspection
Process Quality Control Testing
Pavement Rutting Index
Pavement Serviceability Index
Pavement Serviceability Rating
Potential Transformer
Polytetrafloroethylene
lene
Colorado Public Utilities Commission
Polyvinyl Chloride
Point of Vertical Intersection
Point of Vertical Tangency
Power
Quality Assurance
Quality Control
Quality Checkpoint
Contractor's Quality Manager
Quality Management System
Quality Program Manual
QWEST Communications
Radius
Reasonable Achievable Control Measures
Request for Change Order
Request for Change Proposal
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et m.
Railroad Easement
Recognized Environmental Conditions
Released for Construction
Request for Proposals
125
RFQ
RHMs
RL
ROD
ROM
ROW
RTD
RSC
RWIS
SAE
SAP
SBA
SHPO
SIC
SI&A
SMA
SMP
SOQ
SPCS
SSPC
STD
STP
SWMP
TCC
TCP
TDM
TE
TFE
TIC
TIG
TL
TMSRs
TOC
TRB
TYP
UDS
UE
UIS
UL
UNCC
UPRR
UPS
URA
USACE
USASI
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Request for Qualifications
Recognized Hazardous Materials
Reinforcement Length
Record of Decision
Rough Order of Magnitude
Right -of -Way
Regional Transportation Director (Weld County County Engineer)
Rigid Steel Conduit
Roadway & Weather Information System
Society of Automotive Engineers
Sampling Analysis Plan
Small Business Administration
State Historic Preservation Officer
Standard Industrial Code, U.S. Department of Labor
Structural Inventory & Appraisal
Stone Mastic Asphalt
Safety Management Plan
Statement of Qualifications
State Plane Coordinate System
Steel Structures Painting Counsel
Standard
Shielded Twisted Pair
Stormwater Management Plan
Traffic Communications Center
Traffic Control Plan
Transportation Demand Management
Temporary Easement
Furnished Equipment
Transportation Information Center
Tungsten Inert Gas
Testing Level
Traffic Management Strategy Reports
Traffic Operations Center
Transportation Research Board (of National Research Council)
Typical
Utility Design Sheet
Utility Easement
Utility Information Sheet
Underwriters Laboratories
Utility Notification Center of Colorado
Union Pacific Railroad
Uninterruptible Power Supply
Utility Relocation Agreement
United States Army Corps of Engineers
United States of America Standards Institute
126
U.S.C.
USDOT
USGS
USFWS
Vc
VDS
VE
VECP
VM
VMS
WBS
WCR
WPA
WQCD
A.2
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
DEFINITIONS
United States Code
United States Department of Transportation
United States Geological Survey
U.S. Fish & Wildlife Service
Length of Vertical Curve
Vehicle Detection System
Value Engineering
Value Engineering Change Proposal
Video Monitor
Variable Message Sign
Work Breakdown Structure
Weld County Road
Works Progress Administration
Water Quality Control Division, Colorado Department of Public
Health & Environment
Abandonment
As related to Utilities, shall have the meaning set forth in Book 2,
Section 7.
Acceleration Costs
Shall mean those fully documented increased costs reasonably incurred
by the Contractor; (i.e., costs over and above what the Contractor would
otherwise have incurred) which are directly attributable to increasing
the performance level of the Work in an attempt to complete necessary
Activities of the Work earlier than otherwise anticipated, such as for
additional equipment, additional crews, lost productivity, overtime and
shift premiums, increased supervision, and any unexpected movement
of materials, equipment, or crews necessary for resequencing in
connection with acceleration efforts.
Accept or Acceptance
Formal conditional determination in writing by the County Project
Manager that a particular matter or item appears to meet the
requirements of the Contract Documents.
Activity
Parts of the Work including finished products or functional processes
required as subcomponents of the Work Breakdown Structure, as
defined by the Contractor.
Additional Requested
Elements
The meaning set forth in Book 2, Section 1.5.
Affected Area
As related to mined land reclamation, the total disturbed surface of a pit
or quarry such as sand, gravel, topsoil, or borrow, that is being mined or
will be mined. The area includes, but is not limited to, the excavation
area, plant, and stockpile areas, parking and storage areas, and the haul
roads.
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Affiliate
(1) Any Person that directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common
control with the: (i) Contractor or (ii) any Major Participant; and
(2) Any Person for which 10% or more of the equity interest in such
Person is held directly or indirectly, beneficially, or of record by
the: (i) Contractor, (ii) any Major Participant, or (iii) any Affiliate
of the Contractor under Part (1) of this definition.
For purposes of this definition, the term "control" means the possession,
directly or indirectly, of the power to cause the direction of the
management of a Person, whether through voting securities, by contract,
family relationship, or otherwise.
Alternative Technical
Concept
The meaning set forth in Section 2.2 of the Instructions to Proposers.
Applicable Laws
See Legal Requirements.
Application for Final
Payment
The application described in Book 1, Section 11.6.1.
Approve or Approval
Formal conditional determination in writing by the CDOT Project
Manager that a particular matter or item is good or satisfactory for the
Project. Such determination may be based on requirements beyond
those set forth in the Contract Documents without payment of additional
compensation or a time extension and may reflect preferences of
CDOT.
Architectural and
Engineering Services
All Work relating to the design, including preparation and interpretation
of architectural and engineering plans and specifications, development
of design solutions for conformance with all codes and public safety
requirements and other design related decision -making, and any other
activities, collectively, which are required to be practiced by an
architect or engineer in accordance with the laws of the State of
Colorado.
As -Built Documents
The documents to be provided by the Contractor as described in Book 2,
Section 3.
Award
The Acceptance of the Proposal by the County (with the understanding
that the order of priority of the various Contract Documents shall be as
set forth in Book 1, Section 1.3, and that the County shall have the right
to require compliance with the requirements of the Contract Documents,
even though it may necessitate performance of Work by the Contractor
not contemplated in the Proposal Documents).
Backfill
Material used to replace or the act of replacing material removed during
construction.
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PROJECT No. B2400039
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Base Course
One or more layers of specified material and thickness placed on a
subbase or a subgrade to support a surface course.
Baseline Schedule
The meaning set forth in Book 1, Section 13 and Book 2, Section 2.
Basic Configuration
The elements defining the Project as set forth in Book 2, Section 1.4,
subject to any permitted modifications thereto contained in the Proposal
Documents.
Betterment
As related to Utilities, a betterment is generally defined as the
upgrading; (e.g. increase in capacity) of a Utility being relocated that is
not attributable to the construction of the Project or is made solely for
the benefit of and at the election of the Utility Owner (not including a
technology improvement which can be implemented at a cost equal to
or less than the cost of a "like for like" replacement or relocation). The
use of new materials or compliance with current standards in the
performance of the Utility Work is not considered a Betterment.
Blue Book
The meaning set forth in Book 1, Section 13.7.3.1.
Book 1
The Contract Document designated as Book 1 in the RFP.
Book 2
The Contract Document designated as Book 2 in the RFP.
Bridge
A structure, including supports, erected over a depression or an
obstruction such as water, highway, or railroad, and having a track or
passageway for carrying traffic or other moving loads and having a
length measured along the center of roadway of more than 20 feet (6 m)
between undercopings of abutments or extreme ends of openings for
multiple boxes.
Length. The length of a bridge structure is the over-all length measured
along the line of survey stationing back to back of backwalls of
abutments, if present, otherwise, end to end of the bridge floor; but in
no case less than the total clear opening of the structure.
Roadway Width. The clear width measured at right angles to the
longitudinal centerline of the bridge between the bottom of curbs or
guard timbers, or in the case of multiple heights of curbs, between the
bottoms of the lower risers.
Calendar Day
Each and every day shown on the calendar, beginning and ending at
midnight.
Certificate of
Compliance
A certification, including a signature by a person having legal authority
to act for the manufacturer, stating that the product or assembly to be
incorporated into the Project was fabricated in accordance with and
meets the applicable requirements of the Contract Documents, or
verifying the quality and quantity of material delivered which shall be
accepted by the Contractor, whichever is applicable.
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Certified Invoice
Any invoice or billing endorsed by the Contractor, certifying that
material, specialty work, subcontract work, rental, lease, services, etc.
were acquired for the Project and that the invoiced or billed amount
represents the actual costs.
Certified Test Report
A test report from the manufacturer or an independent testing
laboratory, including a signature by a person having legal authority to
act for the manufacturer or the independent testing laboratory stating
that the test results show that the product or assembly to be incorporated
into the Project has been sampled and tested and the samples have
passed all specified tests.
Change Order
The meaning set forth in Book 1, Section 13.1.1.1.
Claim
A separate demand by the Contractor for: (i) a time extension which is
disputed by the County, or (ii) payment of money or damages arising
from work done by or on behalf of the Contractor in connection with the
Contract which is disputed by the County. A claim will cease to be a
Claim upon resolution thereof, including resolution by delivery of a
Change Order or Contract amendment signed by all parties.
Commercial Vehicle(s)
A vehicle used on highways, in interstate commerce, that meets one of
the following criteria: (i) has a Gross Vehicle Weight Rating (GVWR)
or Gross Combination Weight Rating (GCWR), or gross vehicle weight
or gross combination weight of 10,001 pounds or more, whichever is
greater; (ii) is designed to transport more than eight passengers
(including the driver) for compensation; (iii) is designed to transport 16
or more people, including the driver and is not used to transport
passengers for compensation; (iv) functions to transport hazardous
materials in quantities requiring the vehicle to be placarded.
Completion Deadline
Any or all of the following deadlines, depending on the context: any
Milestone Completion Deadline, any Segment Completion Deadline,
and/or the Final Acceptance Deadline.
Construction
Acceptance Testing
The meaning set forth in Book 2, Section 3.7.
Constructive
When used in connection with the terms "change in the Work," "delay,"
"suspension," or "acceleration," that change in the Work, delay,
suspension, or acceleration which, but for the express terms of the
Contract Documents, could be inferred or implied at law.
Contaminated
Groundwater
Extracted groundwater including contaminants above legally -permitted
discharge levels so as to require treatment prior to re -use or disposal.
Contaminated groundwater, which may legally be re -used without
treatment, including use for dust control, or which merely requires
dilution prior to re -use or disposal, shall specifically be excluded from
the definition.
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Contaminated Soils
Soils containing Hazardous Substance constituents in an amount above
the applicable CDPHE remediation levels, and less than the amounts set
forth in 40 CFR, Part 261.
Contract
Depending on the context: (i) the Design/Build Contract, or
(ii) collectively, the Contract Documents, which establish the rights and
obligations of the County and the Contractor.
Contract Deadlines
The deadlines set forth in Book 1, Section 4.3
Contract Documents
The meaning set forth in Book 1, Section 1.2.
Contract Drawings
The drawings included in Book 4, including the ROW Plans.
Contract Price
The meaning set forth in Book 1, Section 11.1.1.
Contract Schedule
The meaning set forth in Book 2, Section 2.
Contractor
The meaning set forth in the first page of Book 1.
Contractor -Related
Entities
Contractor, Major Participants, Subcontractors, their employees, agents
and officers and all other Persons for whom Contractor may be legally
or contractually responsible.
Contractor
Specifications
The specifications describing the Work that are developed by the
Contractor.
Contractor's Engineer
A professional engineer registered in the State of Colorado who is
responsible for engineering and administrative supervision of the
Project on behalf of the Contractor, who is either an employee of the
Contractor, or a consulting engineer under contract to the Contractor.
Contractor's Utility
Tracking Report
The report regarding Utilities likely to be impacted by the Project which
the Contractor shall maintain on a current basis, and which the
Contractor shall periodically submit to the County, as more particularly
described in Book 2, Section 7.3.2
County
The Project Director for the Project, acting directly or through a
representative authorized in writing, who is responsible for
administrative supervision of the Project; or Weld County for the use
and benefit of the Department of Public Works, whichever the context
requires.
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County -Caused Delays
Unavoidable delays, to the extent that they affect the Critical Path,
arising from the following matters and no others:
(a) A suspension order pursuant to Book 1, Section 14.1;
(b) County -Directed Changes;
(c) Failure or inability of the County to provide responses to proposed
schedules, design submittals and other submittals and matters for
which response by the County is required, within the time periods
indicated in the Contract Documents;
(d) Uncovering, removing, and restoring Work, to the extent provided
in Book 1, Section 5.5.3;
(e) Delay in issuance of NTP or provision of reasons why it was
unable to do so to the extent provided in Book 1, Section 4.2.1;
(f) Any improper action by the County as representative with binding
authority or improper failure to act by the County within a
reasonable time after delivery of notice by the Contractor to the
County requesting such action; and
(g) Any court order to suspend Work shall not be considered a
County -Caused Delay (although it may qualify as a Force Majeure
event) despite the fact that the County may specifically direct the
Contractor to comply with the court order.
County -Directed
Changes
Any changes in the Work (including changes in the standards applicable
to the Work), which the County has directed the Contractor to perform
as described in Book 1, Section 13.
Critical Path
The precedence of activities with total Float less than or equal to zero
on each applicable Contract Schedule.
Current Baseline
Schedule
The meaning set forth in Book 2, Section 2.
Day
The meaning set forth in Book 1, Section 1.8.
Defect or Defective
Condition
Nonconforming Work.
Delay and Disruption
Damages
The meaning set forth in Book 1, Section 13.5.2.
Department
The Weld County Department of Public Works.
Design Acceptance
Review
The meaning set forth in Book 2, Section 3.
Design/Build Contract
That certain Design/Build Contract (High Plains Blvd. (CR 9.5)
Design/Build Project) executed by the County and the Contractor (to
which this Exhibit A is attached), and any and all amendments thereto.
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PROJECT NO. B2400039
Book 1 - Contract
Design Documents
All drawings (including plans, elevations, sections, details, and
diagrams), specifications, reports, calculations and records, at any stage
of development or revision necessary for design of the Project in
accordance with the Contract Documents.
Differing Site
Conditions
"Differing Site Conditions" shall mean (a) subsurface or latent
conditions encountered at the exact boring holes identified in the
geotechnical reports included one the website, which differ materially
from those conditions indicated in the geotechnical reports for such
boring holes, or (b) physical conditions of an unusual nature, differing
materially from those ordinarily encountered in the area and generally
recognized as inherent in the type of work provided for in the Contract.
The term shall specifically exclude all such conditions of which
Contractor had actual or constructive knowledge as of the Proposal Due
Date. The foregoing definition specifically excludes (x) Utility
facilities, (y) Hazardous Substances and (z) any conditions which
constitute or are caused by a Force Majeure event.
Directive Letter
The letter described in Book 1, Section 13.1.1.2.
Dispute
The meaning set forth in Book 1, Section 19.2.
Dispute Resolution
Board
The board described in Book 1, Section 19.2.3.
Effective Date
The date of execution of the Contract by the County.
Engineer
See "Contractor's Engineer." The Contractor acknowledges and agrees
that the County will be responsible for certain oversight and other
matters with respect to the Project, and that as a result certain rights in
favor of the Engineer may be exercised by and inure to the benefit of
the County rather than the Contractor's Engineer. In the event any
question arises regarding whether any such rights are applicable to the
County or how to apply such rights, the County's interpretation
regarding such matter shall control.
Environmental
Approvals
The EA, ROD, COE Section 404 Permit, COE Section 401 Certificate,
CDOT Municipal Separate Storm Sewer (MS4) NPDES Permit, and SB
40 Certification for the Project identified in Book 2, Section 5.
Environmental
Compliance Work Plan
The meaning set forth in Book 2, Section 5.
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PROJECT No. B2400039
Book 1 - Contract
Environmental Laws
All Legal Requirements now or hereafter in effect relating to the
environment or to emissions, discharges, releases, or threatened releases
of Hazardous Substances into the environment, including into the air,
surface water or groundwater, or onto land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of Hazardous Substances or otherwise relating to
the protection of public health, public welfare, or the natural
environmental (including protection of nonhuman forms of life, land,
surface water, groundwater, and air), including the statutes listed in the
definition of Hazardous Substances; the National Environmental Policy
Act, as amended, 42 U.S.C. §§ 4321 et seq.; the Occupational Safety
and Health Act, as amended, 29 U.S.C. §§ 651 et seq.; and the
Hazardous Materials Transportation Act, as amended, 49 App. U.S.C.
§§ 1801; the Endangered Species Act, as amended, 16 U.S.C. §§ 1531
et seq.; the Clean Water Act, 33 U.S.C. §§ 1251, et seq.; the Safe
Drinking Water Act, 42 U.S.C. §§ 300f, et seq.; the Migratory Bird
Treaty Act, 16 U.S.C. §§ 703 et seq.; and the Eagle Protection Act, 16
U.S.C. § 668, each as amended.
Equipment
All machinery, tools, and apparatus together with supplies for upkeep
and maintenance, necessary for the proper construction and acceptable
completion of the Work.
Error
An error, omission, inconsistency, inaccuracy, deficiency or other
defect.
Escrowed Proposal
Documents
The meaning set forth in Book 1, Section 22.1.
Event of Default
A default as described in Book 1, Section 16.1.1, following notice and
opportunity to cure to the extent permitted by Book 1, Section 16.1.2
and issuance by CDOT of notice that an Event of Default has occurred.
Existing Utility Plans
The set of plans included on the website, Reference Documents —
Utilities, which is labeled "Existing Utility Plans with Recommended
Relocations."
Extraordinary
Circumstances
A circumstance which (1) could not have reasonably been foreseen or
avoided by the Contractor with the exercise of due diligence, and (2) is
not already addressed in any of the contract documents, and (3) results
in an additional expense to the Contractor estimated by the County and
Contractor to be in excess of $500,000 per occurrence and $1,000,000
aggregate. In the event a single occurrence exceeds $500,000, the
County will compensate the Contractor for the amount in excess of
$500,000 and this additional amount will not be counted towards the
$1,000,000 aggregate limit. In the event the $1,000,000 aggregate limit
is reached, the County will compensate the Contractor for the amount
exceeding $1,000,000. A change order shall be issued by the County to
adjust the contract price.
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PROJECT No. B2400039
Book 1 - Contract
Final Acceptance
Acceptance of the Project as described in Book 1, Section 20.
Final Design
Documents
The completed Design Documents following Acceptance thereof by the
County as described in Book 2, Section 3.
Fixed Price/Best Design
Approach
The best value selection method set forth in Weld County Code.
Float
The meaning set forth in Book 2, Section 2.
Force Majeure
For purposes of a Contract Price increase, the meaning set forth in Book
1, Section 13.3.1.1(9)(a). For purposes of Contractor's entitlement to a
time extension, the meaning set forth in Book 1, Section 13.3.1.1(9)(b).
General Layout
Drawing
A drawing depicting the Plan View, the Longitudinal Section, a Profile
Diagram and a Typical Section for a given structure.
Governmental
Approval
Any approval, authorization, certification, consent, decision, exemption,
filing, lease, license, permit, agreement, concession, grant, franchise,
registration or ruling, required by or with any Governmental Person in
order to design and construct the Project.
Governmental Person
Any federal, state, local or foreign government and any political
subdivision or any governmental, quasi -governmental, judicial, public
or statutory instrumentality, administrative agency, authority, body or
entity. The term includes the State of Colorado and agencies and
subdivisions thereof, including the Department of Transportation.
Guaranteed Maximum
Price
The Guaranteed Maximum Price shall be the cost submitted on Form J
of the Instructions to Proposers.
Hazardous Substances
Any of the following:
(a) Substance, product, waste or other material of any nature
whatsoever which is or becomes listed, regulated, or addressed
pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 USC Section 9601, et seq.
("CERCLA"); the Hazardous Materials Transportation Act, 49
USC Section 1801, et seq.; the Resource Conservation and
Recovery Act, 42 USC Section 6901 et seq. ("RCRA"); the Toxic
Substances Control Act, 15 USC Sections 2601 et seq.; the Clean
Water Act, 33 USC Sections 1251 et seq.; the Clean Air Act, 42
USC Sections 7401 et seq.; all as amended, or any other federal,
state or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time
hereafter in effect,
(b) Any substance, product, waste or other material of any nature
whatsoever which may give rise to liability under any of the above
statutes or under any statutory or common law theory based on
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PROJECT No. B2400039
Book 1 - Contract
negligence, trespass, intentional tort, nuisance or strict liability or
under any reported decisions of a state or federal court,
(c) Petroleum or crude oil excluding de minimis amounts and
excluding petroleum and petroleum products contained within
regularly operated motor vehicles, and
(d) Asbestos or asbestos -containing materials in structures and or
other improvements on or in the Site (other than mineral asbestos
naturally occurring in the ground).
Highway, freeway,
street, or road
A general term denoting a public way for purposes of vehicular travel,
including the entire area within the ROW.
Holidays
New Year's Day, Dr. Martin Luther King, Jr.'s Birthday (observed),
Washington -Lincoln Day, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas
Day. When New Year's Day, Independence Day or Christmas Day falls
on Sunday, the following Monday shall be considered a Holiday. When
one of these days falls on a Saturday, the preceding Friday shall be
considered a Holiday. Additional legal holidays, when designated by
the Board of Weld County Commissioners, the Governor of the State of
Colorado, or the President of the United States will also be included as
Holidays.
Incidental Utility Work
Incidental Utility Work shall include Abandonment, Protection -in -Place
and Utility Removal Work necessary and/or determined by the
Contractor to be convenient for construction and/or accommodation of
the Project. The Contractor shall be responsible for Incidental Utility
Work for all Utilities, including reqired Governmental Approvals
Including, or including,
includes, included
All references in the Contract Documents to "Including" or "including"
shall mean "including, but not limited to".
Incremental Costs
Those costs, if any, which the Contractor incurs as a result of a
particular circumstance, which the Contractor would not have incurred
but for the circumstance. In determining such costs, one would
determine the total cost that the Contractor would have incurred had the
circumstance not occurred, and subtract such amount from the costs
actually incurred; the difference is the "increment." (For example, if the
Contractor originally has to relocate three water lines, and a fourth
water line is discovered in the same general area which can be relocated
by the same crew, then if the Contractor is entitled (pursuant to Contract
Section 13.11.3) to a Change Order increasing the Contract Price on
account of such newly discovered water line, the County will be
charged with only the costs of keeping the crew working the additional
time to relocate the fourth water line, and will not be charged any
portion of the expense of moving the crew to the site in the first place.)
Indemnified Parties
The meaning set forth in Book 1, Section 18.1.1.
Independent Assurance
The meaning set forth in Book 2, Section 3.
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PROJECT No. B2400039
Book 1 - Contract
Initial Schedule
The meaning set forth in Book 2, Section 2
Inspection
The act of viewing or looking carefully at construction, manufacturing,
design, and maintenance practices, processes, and products, including
document control and shop drawing review, to ensure that the practices,
processes, and products comply with the quality requirements contained
in the Contract Documents.
Inspector or Inspector
The Contractor's authorized representative assigned to perform
inspection of Contract performance.
Instructions to
Proposers
The RFP Document identified as Instructions to Proposers.
Key Personnel
The persons listed on Contract Exhibit D, subject to revision in
accordance with the Contract Documents.
Laboratory
The testing laboratory of the Contractor, the County, or any other
certified testing laboratory.
Landscape and
Aesthetics
The design and visual treatment of Project elements and componentry
comprising landscaping for the highway ROW, architectural treatment
of bridges and Structures with their adjacent environments, retaining
and noise wall patterning, parking structures, site furnishings and
lighting and slope paving.
Landscape Acceptance
The meaning set forth in Book 2, Section 5.
Landscape and
Wetlands
Establishment Period
The meaning set forth in Book 2, Section 5.
Late Finish Cost
Schedule
The late start dates set forth on each applicable Contract Schedule,
subject to revision in connection with any Change Orders, which revise
the Contract Schedules.
Legal Requirements
All applicable federal, state and local laws, codes, ordinances, rules,
regulations, judgments, decrees, directives, guidelines, policy
requirements, orders and decrees of any Governmental Person having
jurisdiction over the Project or Site, the practices involved in the Project
or Site, any Work, or any Utility Work being performed by a Utility
Owner. The term "Legal Requirements" does not include Governmental
Approvals.
Lien
Any pledge, lien, security interest, mortgage, deed of trust or other
charge or encumbrance of any kind, or any other type of preferential
arrangement (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature of a security instrument, and the filing of or agreement to file any
financing statement or other instrument intended to perfect a security
interest).
Liquidated Damages
The damages described in Book 1, Section 17.1.
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PROJECT No. B2400039
Book 1 - Contract
Major Participant
Any of the following entities: all general partners or joint venture
members of Proposer; all individuals, persons, proprietorships,
partnerships, limited liability partnerships, corporations, professional
corporations, limited liability companies, business associations, or other
legal entity however organized, holding (directly or indirectly) a 15
percent or greater interest in Proposer; and each engineering/design
subconsultant that will perform 20 percent or more of the design Work.
Materials
All components required for use in the construction of the Project.
Monthly Progress
Schedule
The meaning set forth in Book 2, Section 2.
Multi -Use Trail
A trail that accommodates various travel modes.
Necessary Design
Change
The meaning set forth in Book 1, Section 2.4.3.
New Environmental
Approval
Any of the following:
(a) A new Governmental Approval of the same type as an
Environmental Approval; and
(b) A renewal, revision, modification or amendment to one or more of
the Environmental Approvals.
Nonconformance
Report (NCR)
The report described in Book 2, Section 3.
Nonconforming Work
Work performed that does not meet the requirements of the Contract
Documents.
Nonconforming Work
Notice (NWN)
The notice described in Book 2, Section 3.
Notice of Final
Acceptance
The notice delivered to the Contractor under Book 1, Section 20.1.4
stating that final County acceptance of the Project has occurred.
Notice of Termination
(or Partial
Termination)
A notice issued by the County to terminate the Contract and the
performance of Work by the Contractor, either in whole or in part,
pursuant to Book 1, Section 15.
Operation Acceptance
Reviews
The meaning set forth in Book 2, Section 3.
Original Baseline
Schedule
The meaning set forth in Book 2, Section 2.
Overburden
Any material that overlays material designated for road or bridge
construction.
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PROJECT NO. B2400039
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Pavement Structure
The combination of one or more of the following courses placed on a
subgrade to support and distribute the traffic load to the roadbed.
Subbase. The layer or layers of specified or selected material placed on
a subgrade to support a base course, surface course, or both.
Base Course. The layer or layers of specified or selected material
placed on a subbase or a subgrade to support a surface course.
Surface Course. One or more layers of a pavement structure designed
to accommodate the traffic load, the top layer of which resists skidding,
traffic abrasion, and the disintegrating effects of climate. The top layer
is sometimes called "Wearing Course."
Payment Bond
The payment bond described in Book 1, Section 8.
PCO Notice
The potential change order notice described in Book 1, Section 13.3.
Performance Bond
The performance bond described in Book 1, Section 8
Permission to Enter
Property Forms
The meaning set forth in Book 2, Section 8
Person
Any individual, corporation, company, voluntary association,
partnership, trust, unincorporated organization, or Governmental
Person, the County.
Private Utility
A Utility that is owned by a Private Utility Owner.
Private Utility Owner
Any owner or operator of a Utility that is not a Public Utility Owner.
However, a private property owner, which merely owns one or more
Service Lines is not considered a Private Utility Owner as a result of
such ownership.
Profile Grade
The trace of a vertical plane usually intersecting the top surface of the
proposed rail or wearing surface and usually along the longitudinal
centerline of the roadbed. Profile grade means either elevation or
gradient of such trace according to the context.
Project
The High Plains Blvd. (CR 9.5) Design/Build Project, as more
specifically described in Book 2, Section 1.0, and all Work to be
provided by the Contractor as a condition to Final Acceptance.
Project Completion
Deadline
Achievement of all Work necessary to meet the Project Completion
Deadline as described in Book 1, Section 4.3.
Project Control
Diagram
The meaning set forth in Book 2, Section 9.2.
Project Manager
The person designated by the Contractor to supervise the Project
Persons performing Work, and to receive delivery of notices to the
Contractor per Book 1, Section 24.9.1.
Project Survey
Coordinator
The meaning set forth in Book 2, Section 9.
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PROJECT NO. B2400039
Book 1 - Contract
Proposal or Proposal
Documents
Those documents constituting the Contractor's proposal in response to
the RFP, including any best and final offers or supplements to proposals
as may have been requested by the County.
Proposal Due Date
The date the Proposal was due as specified in the Instructions to
Proposers.
Proposer
An individual, firm, partnership, corporation, joint venture, or
combination thereof that was shortlisted under the County's Request for
Qualifications issued on January 29, 2024 and that submits a proposal in
response to the RFP.
Proposer's Price
The price included by the Proposer in Form J.
Protection -in -Place or
Protect -in -Place
Any Activity undertaken to avoid damaging a Utility which does not
involve removing or relocating that Utility, including staking the
location of a Utility, avoidance of a Utility's location by construction
equipment, installing steel plating or concrete slabs, encasement in
concrete, temporarily de -energizing power lines, and installing physical
barriers, per Utility Owner's requirements as necessary to ensure their
safe operation and structural integrity. For example, temporarily lifting
power lines without cutting them would be considered Protection in
Place; whereas temporarily moving power lines to another location after
cutting them would be considered a temporary Relocation.
Public Information
Plan
The plan provided by the Contractor and Approved by the County as
described in Book 2, Section 4 (or, prior to such Approval, the draft
public information plan included with the Proposal Documents).
Public Utility
A Utility that is owned by a Public Utility Owner.
Public Utility Owner
Any owner or operator of a Utility that is entitled to reimbursement of
its Relocation costs pursuant to Section 43-1-225, Colorado Revised
Statutes; provided, however, that in the event of any inconsistency
between the foregoing definition and the designation of a Utility Owner
as either "public" or "private" in the Reference Documents — Utilities,
the designation set forth in the Reference Documents — Utilities shall
control.
Punch List
The list of Work items with respect to the Project which remain to be
completed after achievement of each Milestone Completion, each
Segment Completion, or the Project Completion, generally limited to
minor incidental items of Work necessary to correct imperfections
which have no adverse effect on the safety or operability of the Project.
Quality Assurance
(QA)
All those planned and systematic actions necessary for the Contractor to
certify to the County that all Work fully complies with the requirements
of the Contract Documents and that all materials incorporated in the
Work, all equipment used, and all elements of the Work will perform
satisfactorily for the purpose(s) intended.
140
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Quality Control (QC)
The activities performed by the Contractor, designer, producer or
manufacturer to ensure and document that a product meets the
requirements of the Contract Documents. Activities may include
checking, materials handling and construction procedures, calibrations
and maintenance of equipment, shop drawing review, document control,
production process control, and any sampling, testing, and inspection
done for these purposes.
Railroad
Depending on the context, either the ROW, tracks, and systems used for
rail traffic in the vicinity of the Project, or the Union Pacific Railroad
Company.
Real -Time Notice
Information about construction activities as they happen. This
information will be disseminated to stakeholders through a variety of
tools to give them access to current Project conditions.
Reasonable Accuracy
The meaning set forth in Book 1, Section 6.2.
Recognized Hazardous
Materials
The meaning set forth in Book 2, Section 5.
Record Set
A reproduction of a drawing or set of drawings, design calculations, or
other record of engineering work required to be performed by the
Contractor's Engineer in accordance with the Rules of Procedures of the
State Board of Registration for Professional Engineers and Land
Surveyors.
Recovery Schedule
The schedule described in Book 2, Section 2, and which Contractor is
required to provide under Book 1, Section 4.5.
Reference Documents
The RFP Documents designated on the website, Reference Documents,
and described in Book 1, Section 1.4.
Reference Drawings
Preliminary and conceptual design plans and related documents
provided as part of the Reference Documents.
Released for
Construction
Documents
The drawings (including plans, elevations, sections, details, and
diagrams), specifications, shop drawings, drawings, samples, reports
and calculations approved by the Contractor for construction as required
by Book 2, Section 3.
Relocation or Relocate
As related to Utilities, each removal, transfer of location, Abandonment
and/or protection in place (including provision of temporary services as
necessary) of any and all Utilities that is necessary or advisable in order
to accommodate or permit construction of the Project.
Remediation Work
After determination by the Contractor that a Hazardous Substance(s)
exists, sampling, treatment, and/or off -Site disposal of Hazardous
Substances and materials containing Hazardous Substances, as
Approved by the County and in accordance with Book 2, Section 5.
Request for Change
Order (RCO)
A Contractor -initiated request for a change order under Book 1, Section
13.3.
141
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Request for Change
Proposal (RCP)
A proposal issued by the County under Book 1, Section 13.2.1.
Request for Proposals
The Request for Proposals for the High Plains Blvd. (CR 9.5)
Design/Build Project issued by the County on or about January 29,
2024, including all addenda thereto.
Retainage
The meaning set forth in Book 1, Section 11.5.1.
Revised Baseline
Schedule
The meaning set forth in Book 2, Section 2.
RFP Documents
The documents listed in ITP Section 1.2.
Right -of -Way
The real property and property interests provided by the County and/or
Utility Owners (through agreements with the County) necessary for
ownership and operation of the Project.
Road
A general term denoting a public way for purposes of vehicular travel,
including the entire area within the ROW.
Roadbed
The graded portion of highway within top and side slopes, prepared as a
foundation for the pavement structure and shoulders.
Roadbed Material
Material in cuts, embankments, and in embankment foundations from
the subgrade down that supports the pavement structure.
Roadside
A general term denoting the area adjoining the outer edge of the
roadway. Extensive areas between the roadways of a divided highway
may also be considered roadside.
Roadside Development
Those items necessary for the preservation of landscape materials and
features. The rehabilitation and protection against erosion of all areas
disturbed by construction through seeding, sodding, mulching and the
placing of other ground covers. Suitable planting and other
improvements as may increase the effectiveness and enhance the
appearance of the highway.
Roadway
The portion of a highway within limits of construction.
Roadway Width
See bridge.
Routine Maintenance
Activity
The type of work performed on a routine; (e.g., daily or weekly) basis to
maintain the highway surfaces, shoulders, roadsides, facilities, and
structures; such as litter pickup, graffiti removal, and vegetation control.
ROW Access Schedule
The meaning set forth in Book 1, Section 6.1.1.2.
ROW Plans
The meaning set forth in Book 1, Section 6.1.1.
Safety Management
Plan
The Approved safety management plan established by the Contractor,
as specified in Book 2, Section 2 (or, prior to such Approval, the draft
safety management plan included with the Proposal Documents).
Salvable Material
Material that can be saved or salvaged. Unless otherwise specified in
the Contract, all salvable material shall become the property of the
Contractor.
142
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Service Line
As related to Utilities, a Utility line, the function of which is to directly
connect the improvements on an individual property to another Utility
line located off such property, which other Utility line connects more
than one such individual line to a larger system. (The term "Service
Line" also includes any Utility on public or private property that
services structures located on such property.)
Shop Drawings
A general term that includes drawings, diagrams, illustrations, samples,
schedules, calculations, and other data, which provide details of the
construction of the Work and details to be used by the Engineer for
inspection.
Shoulder
The portion of the roadway contiguous with the traveled way for
accommodation of stopped vehicles, for emergency use, and for lateral
support of base and surface courses.
Sidewalk
That portion of the roadway constructed for pedestrian use.
Site
The parcels of ROW identified on the ROW Plans or upon which the
Project is to be constructed and installed as well as all other areas in the
vicinity used by the Contractor for construction Work.
Specialty Item
Work requiring highly specialized knowledge, abilities, or equipment
not ordinarily available in the type of contracting organization qualified
and expected to bid on the Contract as a whole, and generally limited to
minor components of the overall Contract.
Stabilization
Modification of soils or aggregates by incorporating materials that
increase load -bearing capacity, firmness, and resistance to weathering
or displacement.
Stakeholder
The meaning set forth in Book 2, Section 4.
Standard Drawings
Plans issued by CDOT or Weld County for general application and
repetitive use in connection with CDOT or Weld County projects; the
Standard Drawings will not apply to the Work except with regard to
work performed using the documents or in connection with any design
furnished by the Contractor which references the Standard Drawings.
Standard Specifications
Colorado Department of Transportation Standard Specifications for
Road and Bridge Construction 2022.
143
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Standards of the
Industry
Practices, procedures, methods and standards that: (i) are consistent
with current industry practices established for, or employed by, leading
participants in the design, construction, operation, and maintenance
industries; (ii) comply with applicable laws and applicable industry
underwriters' and the fire and life safety codes and standards; and (iii)
promote reliability, efficiency, safety, and security. Standards of the
Industry include, without limitation, taking reasonable steps to assure
that sufficient personnel are employed and available to perform the
work and that such personnel are adequately skilled, experienced, and
trained to design, construct, install, operate, and maintain the work
properly and efficiently, and that appropriate coordination, monitoring,
and testing is performed to assure that all elements of the work are
designed, constructed, and installed so as to function as required by the
Contract Documents.
State
State of Colorado acting through its authorized representative, or the
State of Colorado in the geographic sense, depending on the context.
Structures
Bridges, culverts, catch basins, drop inlets, retaining walls, cribbing,
manholes, endwalls, buildings, storm drains, service pipes, underdrains,
foundation drains, fences, guardrail, signs, end sections, traffic signals,
light standards, and other features which may be encountered in the
Work and not otherwise classified.
Subbase
Layer(s) of specified material thickness placed on a subgrade to support
a base course.
Subcontract
Any subcontract to perform any part of the Work or provide any
materials, equipment or supplies for any part of the Work between the
Contractor and a Subcontractor, or between any Subcontractor and its
lower tier Subcontractor, at any tier.
Subcontractor or
Subconsultant
Any Person with whom the Contractor has entered into any Subcontract
and any other Person with whom any Subcontractor has further
subcontracted any part of the Work, at any tier.
Subgrade
The top surface of a roadbed upon which the pavement structure,
shoulders, and curbs are constructed.
Subgrade Treatment
Modification of roadbed material by stabilization.
Substantial Landscape
Completion
The meaning set forth in Book 2, Section 17.
Substructure
All of the structure below the bearings of simple and continuous spans,
skewbacks of arches, and tops of footings of rigid frames, together with
the backwalls, wingwalls, and wing protection railings.
Superintendent
The Contractor's authorized employee responsible for the construction
Work related to the Project or a Segment.
Superstructure
The entire structure except the substructure.
144
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Supplemental
Specifications
County -approved additions and revisions to the Standard Specifications.
Supplier
Any Person other than employees of the Contractor not performing
work at the Site that supplies machinery, equipment, materials or
systems to the Contractor or any Subcontractor in connection with the
performance of the Work; Persons who merely transport, pick up,
deliver, or carry materials, personnel, parts, or equipment or any other
items or persons to or from the Site shall not be deemed to be
performing Work at the Site.
Surety
Each properly licensed surety company approved by Weld County,
which has issued one or more of the Payment and Performance Bonds.
Surface Course
One or more layers of a pavement structure designed to accommodate
the traffic load, the top layer of which resists skidding, traffic abrasion,
and the disintegrating effects of climate. The top layer is sometimes
called the "Wearing Course."
Technical Criteria
The criteria described in Book 2 that establishes the minimum
acceptable standards of quality, materials, and performance for the
Work, and which will be used as a basis for reviews, and as a basis for
Final Acceptance.
Test
The procedure and method of acquiring and recording physical data and
comparing it to set standards and submitting a statement to such
conditions or operations as will lead to its Acceptance or rejection
(deficiency, Defective Condition, Nonconformance) of the item.
Test -Based Acceptance
Acceptance based on each test meeting minimum requirements.
Test Procedure
Methods that detail the practice of acquiring the Test data.
Time and Materials
Change Order
A Change Order issued under Book 1, Contract Section 13.7.
Traffic Control Plan
The plan described in Book 2, Section 16.
Traveled Way
The portion of the roadway for the movement of vehicles, exclusive of
shoulders and auxiliary lanes.
Unit Price
The meaning set forth in Book 1, Section 13.6.2.
Unit Price Allowance
The meaning set forth in Book 1, Section 11.1.1.
United States
Department of
Transportation
(USDOT)
United States Department of Transportation or any executive
department or agency thereof, or as the context may require, the
USDOT Secretary or other person who may at the time be acting in the
capacity of Secretary, or an authorized representative or any other
person otherwise authorized to perform the functions to be performed
hereunder by USDOT.
145
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Utility or utility
(i) A privately, publicly or cooperatively owned line, facility and/or
system for producing, transmitting or distributing communications,
power, cable television, electricity, light, heat, gas, oil, crude products,
water, steam, waste, signal systems and other products that directly or
indirectly serve the public; and/or (ii) a privately owned irrigation
facility. The necessary appurtenances to each utility facility shall be
considered part of such utility. Without limitation, any Service Line
connecting directly to a utility shall be considered an appurtenance to
that utility, regardless of the ownership of such Service Line. The term
"Utility" is sometimes also used to refer to the owner or operator of any
such line, facility and/or system (a "Utility Owner"). The term "Utility"
shall specifically exclude existing storm water facilities, traffic signals,
and street lights.
Utility Agreement
A URA and/or a Work Order, as the context may require.
Utility Delay
Any failure by a Utility Owner to meet any time parameters for
performance by such Utility Owner which are set forth in the applicable
Work Order, which failure by the Utility Owner delays the Critical Path
so as to impair the Contractor's ability to meet a Completion Deadline;
provided, however, that: (i) to the extent that such failure is excused
under a "force majeure" provision in the applicable URA or in the Work
Order, such failure shall not be the basis for calculating a Utility Delay
against the Utility Owner; however, the Contractor shall be entitled to
an extension of any Completion Deadline(s), (ii) once the Contractor
has issued a Design Acceptance Letter for a particular Utility -Owner
furnished design pursuant to Book 2, Section 7, any subsequent failure
by such Utility Owner to meet the time parameters in the applicable
Work Order resulting from any failure of such design to comply with
the requirements of Book 2, Section 7 shall not constitute a Utility
Delay, and (iii) once the Contractor has issued a Construction
Inspection Acceptance Letter for construction by a particular Utility
Owner pursuant to Book 2, Section 7, any subsequent failure by such
Utility Owner to meet the time parameters in the applicable Work Order
resulting from any failure of such construction to comply with the
requirements of Book 2, Section 7 shall not constitute a Utility Delay.
Any time parameters set forth in a URA shall not be the basis for
calculating a Utility Delay. Time extensions as related to Utility Delays
are described in Book 1 Section 6.2.4.
Utility Easements
All permanent easements and/or other permanent interests in real
property owned by Utility Owners in connection with existing Utilities.
Utility Information
Sheet (UIS)
A form, completed prior to NTP for each Utility impacted by the
Project, which documents the existing condition of such Utility and a
preliminary Relocation recommendation to mitigate the potential
conflict.
146
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Utility Owner
The owner or operator of any Utility (including both Public Utility
Owners and Private Utility Owners).
Utility Owner
Identification Number
The number that has been assigned to each Utility Owner on the UISs.
Utility Relocation
Agreement (URA)
An agreement made between the County and a Utility Owner that
provides a general framework for addressing Utility conflicts associated
with the Project, and which is deemed included in Appendix A (for
Public Utility Owners) or Appendix B (for Private Utility Owners) to
Book 2, Section 7.0.
Utility Relocation Plans
The design plans for Relocation of a Utility impacted by the Project to
be prepared by the Contractor or the Utility Owner, as determined
pursuant to Book 2, Section 7.
Utility Removal Work
Work necessary to remove any Utilities (whether or not in use as of the
date of NTP) for which leaving the Utilities in -place is not feasible or
not permitted, or which the Contractor otherwise proposes to be
removed in order to accommodate or permit construction of the Project,
regardless of whether or not replacements for such Utilities are being
installed in other locations).
Value Engineering
Change Proposal
(VECP)
The meaning set forth in the Book 1, Section 12.
Verification/Verify
The act of testing or inspecting performed by qualified testing or
inspecting personnel employed by Weld County or its designated agent
to independently establish Conformity to the Contract.
Vision Message
The Project message communicated by the Weld County Public
Information Team, which will include the overall goals, strategies,
direction, and philosophy of the Project.
Warranty
Any warranty made by the Contractor in Book 1, Section 21.
Design Build Project
Office
The meaning set forth in Book 2.
Wheel Path
Wheel paths are the two sections of each through -traffic lane that bear
the wheel loading. The center of each wheel path is located 3 feet from
the center of the lane; each wheel path is 2 feet wide.
147
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Work
All duties and services to be furnished and provided by Contractor as
required by the Contract Documents, including the administrative,
design, engineering, quality control, quality assurance, Relocation,
procurement, legal, professional, manufacturing, supply, installation,
construction, supervision, management, testing, verification, labor,
Materials, equipment, documentation and other efforts necessary or
appropriate to achieve Final Acceptance except for those efforts which
the Contract Documents specify will be performed by Weld County or
other Persons. In certain cases the term is also used to mean the
products of the Work.
Work Breakdown
Structure
The meaning set forth in Book 2, Section 2.
Work Order
An ordering agreement (as the same may be amended from time to
time) among Weld County, a Utility Owner and the Contractor,
providing detailed information and terms relating to the Relocation of a
particular Utility, which is executed pursuant to a URA. At the
County's election, any Work Order will also function as a Change
Order, in accordance with Book 1, Section 6.2, when the Work Order
form is completed and/or modified as directed by the County to reflect
such dual function.
Working Day
Any Calendar Day other than Saturday, Sunday, or a Holiday.
Working Drawings
A general term that includes drawings, diagrams, illustrations, samples,
schedules, calculations, and other data which illustrate the construction
of the work, material, equipment, methods, and items which are
necessary to construct the work in accordance with the plans and
specifications.
Written Permission of
the County
A letter signed by the authorized representative of Weld County
granting specific permission and outlining limitations of the permission.
148
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Exhibit B — Form P — Completion Deadlines
149
High Plains Blvd. (CR 9.5) Design -Build Project
Project No. B2400039
FORM P
COMPLETION DEADLINES
Name of Proposer Kraemer North America, LLC
Contractor Duration
Deadlines
1. Final Completion Date in Advance of December 31, 2025.
December 31, 2025
Final Acceptance Deadline: 90 Days after Project Completion
90 days after project
completion
Notes: Durations shall be set forth as Calendar Days. Project Completion Date shall be set forth
as fixed date (i.e., month, day, and year).
150
!ARMS
Volu. ,' II-
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Exhibit C — Form I — Key Personnel
151
FORM I
KEY PERSONNEL INFORMATION
Name of Proposer: Kraemer North America, LLC
PROPOSED KEY PERSONNEL
Position
Name
Key Personnel
Included in
SOQ
(Yes or No)
Employer's Firm Name
DB Project Manager
Tyler Rue
Yes
Kraemer North America, LLC
Design Manager
Ryan Sisson, PE
Yes
RMS, Inc.
Construction
Manager
Dustin Kelsey
Yes
Kraemer North America, LLC
DE Quality
Manager
Andrei Bedova, PE
Yes
Axios
Design Quality
Manager
Stephanie Alanis, PE
Yes
EMS, Inc.
Construction Quality
Manager
Kaitlin Callahan-Meis
Yes
Kraemer North America, LLC
Safety Manager
Walter Pena
Yes
Kraemer North America, LLC
ROW'!UtilitylIrrigati
on Design Manager
Kyle Don'enbacher_ PE
Yes
EMS, Inc.
Roadway
Joe Tate, PE
Yes
RMS, Inc.
Floodplain
Andrew Earles, PhD, PE
Yes
Wright Water Engineers
HIGH PLAINS BLVD. (CR 9.5) DESIGN -BUILD PROJECT
Form I Page 1 of 2
Kraemer/RMS Volume I - 12
152
August 1, 2023
Include Weld County Approval letter for Key Personnel not included in SOQ.
HIGH PLAINS BLVD. (CR 9.5) DESIGN -BUILD PROJECT
Form I Page 2 of 2
Kraemer/RMS Volume I - 13
152.1
August 1, 2023
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Exhibit E — Certification Statement
153
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
CERTIFICATION STATEMENT
The Contractor shall submit the following documentation to Weld County, which documentation
shall be retained in the Project records:
1. A certified invoice for purchased material shall contain the following statement, which
has been signed by the Contractor:
"We certify, by photocopy of this invoice, the quantity of material represented by this
invoice was purchased and received for the High Plains Blvd. (CR 9.5) Design Build Project
and the prices shown are the actual costs."
Contractor Date
Verification shall be provided that payment requested for material furnished and delivered will not
exceed the amount paid by Contractor as evidenced by a bill of sale supported by paid invoice, or
75% of the in -place price, whichever is less.
Signed: Contractor's Superintendent and Subcontractors' Superintendents (if applicable)
The Contractor will review this analysis for reasonableness. If the analysis is considered reasonable,
the Contractor will sign and date it. Otherwise, it shall be returned for further information or
revision.
154
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Exhibit F — Letter of Vested Interest
155
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Weld County Department of Public Works
To Whom It May Concern:
It is hereby understood that the High Plains Blvd. (CR 9.5) Design -Build Project No. , S.A.
No. (the Project) fully intends to reimburse
(Contractor)
for materials owned by said Contractor -Purchaser and intended for incorporation into the Project.
Said materials, as described below, are now stored on property owned
By and leased by
(if applicable)
Said storage property is located as follows:
(Address and/or Description of Property)
Said stored materials are described as follows:
(Detailed Description of Materials)
It is hereby recognized that once reimbursement has been accomplished, Weld County will have a
vested interest in the materials. Access to and possession of the materials will be granted to CDOT
upon demand and providing that acceptable proof is offered substantiating that reimbursement to
Contractor was, in fact, accomplished.
Owner Phone Number Lessee (if applicable) Phone Number
Owner Phone Number Lessee (if applicable) Phone Number
Attachments: (When existing)
Warehouse Receipt of Contract for Storage
156
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Exhibit G — ATC Submittal
Attached by Reference
157
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Exhibit H — RFP Submittal
Attached by Reference
158
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Exhibit J — Form N — Payment Bond
159
Weld County, Colorado
PROJECT NO, B2400039
Book I - Contract
PAYMENT BOND
High Plains Blvd. (CR 9.5) from CR 32 to CR 34
Bond No. Zur 9456329, Fed: K41820494; Cont 30209443: Lb. 070223212
WHEREAS, the Weld County ("Weld County") (referred to herein as "Obligee"),
have Awarded to Kraemer North America, LLC , a
Delaware LLC ("Principal"), a Design -Build Contract for the High Plains
Blvd. (CR 9.5) from CR 32 to CR 34 dated as of
2024 (the "Contract"), on the terms and conditions set forth therein; and
WHEREAS, Principal is required to furnish a bond guaranteeing payment of claims
as described in C.R.S. sections. 38-26-105 through 38-26-107 concurrently with delivery to
Obligee of the executed Contract. Zurich American Insurance Con, an NY Corporation
Federal Insurance Company, an IN ration
TheContinentalInsurance Company, a PN Corporation
NOW, THEREFORE, Principal andvMutual Insuraanoe Company. an MA Co_raUreorr r-„), an
admitted surety insurer in the State of Colorado, are held and firmly bound unto Obligee in the
amount of $ n„o rrsa tjnor mj Qt100 (the "Bonded Sum"), for payment of which sum
Principal and Surety jointly and severally firmly bind themselves and their successors and
assigns.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if Principal shall fail to
pay any of the persons named in C.R.S. sections. 38-26-105 through 38-26-107, with respect to
the Work, then Surety shall pay for the same in an amount not to exceed the Bonded Sum;
otherwise this obligation shall be null and void.
The following terms and conditions shall apply with respect to this bond:
1. The Contract Documents (as defined in the Contract) are incorporated by reference herein.
2. No alteration, modification or supplement to the Contract Documents or the nature of the
work to be performed thereunder, including without limitation any extension of time for
performance, shall in any way affect the obligations of Surety under this bond. Surety
waives notice of any alteration, modification, supplement or extension of time.
3. Correspondence or claims relating to this bond should be sent to Surety at the following
address:
Zurich American Insurance Comoanv - Claims
4 Flnbarcadero. Sui3e 3740
San Francisco. CA 94111
160
Weld County, Colorado
PROJECT No. 82400039
Book f - Contract
4. This bond shall inure to the benefit of the persons named in C.R.S. sections 38-26-105
through 38-26-107 so as to give a right of action to such persons and their assigns in
any suit brought upon this bond
IN WITNESS WHEREOF, Principal and Surety have caused this bond to be
executed and delivered as of July 2
2024,
Principal:
Surety:
Kraemer America LAC
�
1
By:
Its: r.1/t.ce Piesrdcvx+
(Seal) Zurich American Insurance Company
Federal insurance CompanyThe Continental Insurance Insurance Company
Liberty Mutual Company
N
paomev-in-Fact
(Seal)
[ADD APPROPRIATE SURETY ACKNOWLEDGMENTS]
160.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
Civil Code § 1189
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy or validity of that document.
State of California
County of San Francisco
)
) ss
)
On 2',"_ ^ 2_'4 , before me, Patricia Arana, Notary Public, personally appeared
Jessica L Nowlin , who proved to me on the basis of satisfactory evidence to be the personfs)
whose name4s) isAce subscribed to the within instrument and acknowledged to me that
1 she ey executed the same in his,Lher thei, authorized capacitvfies), and that by
histheritheic signatures} on the instrument the person4s), or the entity upon behalf of which the
persons} acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Signature:
160.2
Patricia rang, Notary Public
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPASS OF MARYLAND
POWER (*.ATTORNEY
KNOW ALL MEN ItY tI11;SI PRFSEN 1 S• That the ',URIC' AMERICAN INSURANCE COMPANY. a corporation of the State of New
York. the CY)LONIAt AMERICAN CAST `Al CS AND SURETY COMPANY. a corporation of the Mate of Illinois, and the FIDELITY
AND P11,11 COMPANY OF MAR VI.AND a corporation of the State of Illinois (herein collectively called the "Companies.). by Robert
D. Manes Vox President. in pursuance of authority granted by Article V, Section S. of the Sly -Lays of said Companies. which arc set forth
on the reverse side hereof and arc herchy certified to he in full force and effect on the dale hereof. do hereby nominate. constitute. and
appoint Anna SWEETEN, Michael E. SHEAHAN, Michael J. HEFFERNAN, Richard S. SVEC, Jessica L. NOWLIN, Chris
FERDERER, Jenny M. GREMILLION, Ian WRIGHT of San Jose. California, of its true and lawful agent and Attorney -in -Fact, to
make. execute. seal and Mixer. for, and on its behalf as surety. and as its act and decd: any and all bonds and undertakings, and the
execution of such bonds or undertakings in pursuance of these presents. shall he as binding upon said Companies. as fully and amply. to all
intents and purposes. as if they had been duly executed and acknowledged by the regularly elected officers of the 7,IIRICII AMERICAN
INSURANCE COMPANY at its office in New York. New York.. the regularly elected officers of the COLONIAL AMERICAN
CAW AI.I`V AND St.tRFTY COMPANY at its office in Owings Mills, Maryland.. and the regularly elected officers of the FIDELITY AND
DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills. Maryland.. in their own proper persons.
The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section IL of
the By -Laws of said Companies. and is now in force.
IN WITNESS NESS WHEREOF. the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said
7.C'RICII AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and
FIDELITY AND DEPOSIT COMPANY OF MARYLAND. this 24th day of May. A.D. 2024.
ATTEST:
ZURICH AMERICAN LNSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
BY'
Robert Up3:
ufnuY
I /n Pnsiden
By. Damn E Brown
Secretary
State of !Maryland
County of Baltimore
On this 24th day of May, A D 2024. before the subscriber. a Notary Public of the State of Maryland. duly commissioned and qualified, Robert D.
Starray, She President sad Dawn E. Brown, Secretary of the Companies, to me personally known to be the individuals and offieen described in and who
executed the preceding msuumenk and acknowledged the execution of same, ud being by me duty sworn, deposelh and saith, that he/she is the said officer of
the Company aforesad, and flat the seals affixed to the preceding inslrurnent are the Corporate Seals of said Companies, trod that the said Corporate Seals and
the signature as such officer were duly affixed and subscribed to the said tnsuument by the authority and direction of the said Corporations.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above wntten
Genevieve M. Maison
°MEV.. M. MARION
N0TMYRIRE
elk tsi..iirYaEgira.MAIMn.n>Zs
Authenticity 'Adds bead can be confirmed at bondvalidatar.zuricbna.com or 410-559-8790
160.3
EXTRACT FROM BY-LAWS OF THE COMPANIES
"Article V. Section 5. Anomes s -in -[-5O. the Chief Executive Officer. the President. or any Executive Vice President or Vice President
may. by ysmien instrument under the attested corporate seal. appoint anomeys-in-fact with authority to execute bonds. policies.
re.ognizanccs. stipulations, undertakings. or other like instruments on behalf of the Company. and may authorize any officer or any such
attorney -in- lad to affis the cxrrisoate seal thereto: and may with fir without cause modify of revoke any such appointment or authority at any
one
CERTIFICATE
f. the undersigned. Vice President of the ZIiRICII AMERICAN INSURANCE COMPANY. the COLONIAL AMERICAN
CAst'Al .I Y AND SCSI IV` COMPANY. and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. do hereby certify that the
tiaegoing Posses of Attorney is still in full force and effect on the date of this certificate: and I do further certify that Article V. Section IL of
the list ass oldie Companies is still in force.
phis rimer of Anomcy and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the /CRICI I AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1991.
51.5(11 V Etl: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary
and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such
facsimile signature and seal shall be valid and binding on the Company."
1 his Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Dirretors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of
May, 1994. and the fallowing resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a
rioting duly called and held on the 10th day of May, 1990.
RESOLVED: .That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature
of any Vice -President. Secretary. or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a
certified copy of any passer of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect
a- (hough manually affixed.
IN TESTIMONY WHEREOF. I have hereunto subscribed my name and affixed the corporate seats of the said Companies.
this day of Q '°d .
Thomas O. McClellan
Vice President
TO REPORT A CLAIM WITH REGARD TO A SURETY BOND, PLEASE SUBMIT A COMPLETE DESCRIPTION
OF THE CLAIM INCLUDING THE PRINCIPAL ON THE BOND, THE BOND NUMBER, AND YOUR CONTACT
INFORMATION TO:
Zurich Surety Claims
1299 Zurich Way
Schaumburg, IL 60196.1056
retxtrtsfclaims@zurichoa,com
800-626-4577
Authenticity alibis bond can be confirmed at bondvaldator.zuriebna.com or 4I0-559-8790
160.4
E3 El'
Power of Attorney
Federal Insurance Company ( Vigilant Insurance Company ( Pacific Indemnity Company
Westchester Fire Insurance Company j ACE American Insurance Company
Nrtaw 411 by These Presents, Mat FEDERAL INSURANCE COMPANY. an Indiana eorpon,ion. YIG1LAtYT INSURANCE COMPANY, a New York corporation. PACIFIC INDEMNITY
COMPANY. a Wrsrnnsm cnrprrat inn WESTCIIMER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY corpnratwns of the Commonwealth of Pennsylvania.
each here. ionuntute and appoint Vichael,l. Heffernan, Jessica L. Notelin. Michael E. Sheehan, Richard S. Svee, Anna Sweeten and fan Wright
of San Jose, California ----- ----.._��_. ___--- - -- ___-- - -
each as their true and fawtul Afton, in Fart to .soule under such destgnat ton in their names and to mitt their enrporate seals to and deliver for and on their behalf as surety thereon
rat otherwise bonds and undertakings and (Abet wrtiEnt, obligatory in the melon. Chewed (other than bad bonds) given or eseeuted In the course of business, and any Instruments
zoo..ing or altering the samw, and consents to the modification or alteration of any instrument Mem.d to in said bonds or nbdlgations
to Witness Whereof. said FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY. PACIFIC INDEMNrTY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY
and ACE AMERICAN INSURANCE COMPANY have each ..muted and attested these presents and affixed their corporate seals on this 2. day of )uly, 2022.
Lt., At ch...bbtphtn Al ilaeo . Vice Ptoldtm
Fail'
S1ATF OF NEW )ERSEN
County of Ilunterdon st
On Cho 2rn day of loly, 2022 before me, a Notary Public of New lersey, personally came Dawn M Chloros and Stephen M. Haney, to me known to be Assistant Secretary and OVA
Presdentrespectively, of FEDERAL INSURANCE COMPANY. VIGILANT INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY and ACE
AMERICAN INSURANCE COMPANY. the companies which executed the foregoing Power of Attorney, and the sold Dawn M Maros and Stephen M. Haney. being by rite dtdy sworn.
severally and each for herself and himself did depose and say that they are Assistant Secretary and Vice President. respectively. of FEDERAL INSURANCE COMPANY. VIGILANT
INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY. WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY and know the corporate seals
thereol, that the teals affixed to the loregomg Power of Attorney are such corporate seals and were thereto alflsed by authority of said Companies: and that their signatures as such
onuYn were duly alto. and subscribed by I. authority
Nola! sal Seat
K O IIRIME J. AOILAAR
NOTARY PUSUC OF NEW JRNSI Y
No 23toeds
CamrrrYbn IIion.w hey 10, 2024
tmtay PtMe
CERTIFICATION
Resolutions adopted by the Boards of Directors of FEDERAL INSURANCE COMPANY. VIGILANT INSURANCE COMPANY, and PACIFIC INDEMNITY COMPANY on August 30. 2016;
WESTCHESTER FIRE INSURANCE COMPANY on December II. 2006. and ACE AMERICAN INSURANCE COMPANY on March 20.2009:
`TtESutvto out the Wowing authorizations Maw to Me emotion. roe and on be►atf al the company, of bands. undettaldmcs. reroptorom contracts and odor win. wmminrcnta of the Company
towred inn nn the ardour, tour of business f each a -Written Commnnwet j
In J Each e Chain.. the Ptdeot and the Vice Presde nts at the Company is Webs, author.. to esecuw any Written Commttnent for and on beta... Company. under chit sear
of tbt of rte
r odervrleem
f2J Each dulyappnwwdanornrysikanxot.CompanybherebyauMan#dtones.anyWrittenCommHnclu..0nbehalfoffheCompany, under. sealer L. Company or other...
to the relent that such anion...cat au .cat by the pant of powers prom. tar m such persons written appeimosnt as such mammy...tact
t ]) EaA of the t:hauroan the hetnntsat each the Via Prnidente of the Company rs AsMy auuhorttad for and sera betuU of the Ce+opaMS b aipolnt ki wnnag ai=tit
person the acareey�un-
taa omit Company wi bU power ardauthoAty W raacete. for and rr bdalfofthetemis y. narndr reYalofEMCempamyorothe�trly.suJWrtnenconmur ti th'n".1
item ire sPralMd m such written appointment which m n neauon trim be by {moral type or cos of Mennen Commitments or by specification of one or more particular Written
Coamnunents
Eat Eadt of the Chairman the Presider and the Vice Premdents of the Coonpary U berth' auOmrite A, for and on behalf d tie Company. to da pie In welting to any Weer oil low of the
Company. orthurfty to mer.. for ant on behaO of the Comp, under the Company's teal or otherwise. suds Written Comm.*. of t►n Company as spmlhd Ulundi nrinon
dategananwhich ',limbo may for by pnerai type or classed' Wrmen Comnutments or ►yspectfiamntprom ormom pa tio.'Written Commitmelus.
( si The signature of ow officer m other person mem.g any written Commitment or appointment m dstepebn putstant ea tots Revoinuors and Ma rat of abe Company, may bo Wand by
frtsenule on loth Wnuen Camatwem or written appointment ordekjauwt
FURTHER RESOLVED. that the foregoing Stmehrttan did nos be droned to for an eachtatse.tenwn, of tie passes sad author,' of alms employees and other persona to act for old os behalf ofthe
Compa, arch such Resolution sisal not limn or otherwise affect the nerds* of any sees power or authority otherwise .dly gonad or vested'
I. Dawn M Chloros. Assisnfn Secretary of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY. PACIFIC INDEMNITY COMPANY. WESTCHESTER FIRE INSURANCE
COMPANY and ACE AMERICAN INSURANCE COMPANY (the "Companies') do hereby certify that
(i) the foregoing Resolutions adopted by the Board of Directors of the Companies are true, correct and In full farce and effect.
(o) the foregoing Power of Attorney b true, correct and In full force and Oka
Given under my hand and seals of old Companies at Whitehouse SAtk n, NI, this J!1. 2 2021
WWII M Chkmm, Aso matt Saran
IN THE EYENT YOU SOW TO VERIFY THE AtrtIlELTICt1Y OF TAIL SON° OR NOTIFY 1f5 OFANY OTHIR MATTER PLEASE CONTACT OS AT
Tolubonw i9081 403-3443 Fan. 1400] MU. 3656 amass suremechubbcros
160.5
Comte., FED-VIG4,146F.AAIC(rev 11-1f0
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT
Kilos ,\II Men By These Presents. That the Continental Insurance Company. a Pennsyh grin insurance company. is a duly organized and existing
insurance company hating its principal office in the City of Chicago. and State of Illinois, and that it does by virtue of the signature and seal herein
:%fused hereby make. constitute and appoint
David Law pence Alvarado. Jessica L Nowlin. John Gilliland, John T. Lettieri, Individually
or San Francisco. C'A. its tale and last f'ul Attomeytsf-in-tact with full potter and authority hereby cxtnferred to sign. seat and execute for and on its
tsthatf bonds. undertakings and ether obligator instruments of similar nature
- In Unlimited Amounts -
and to bind them thereby as foully and to the same extent as if such instruments %core signed by a duly authorized officer of the insurance company and all
the acts of said Anomey. pursuant to the authority hereby given is hereby ratified and confirmed.
This Potter of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions. printed on the reverse hereof, duly
adoplad, as indicated. by the Board of Directors of the insurance company.
In M itness 15 hereof. The Continental Insurance Company has caused these presents to be signed by its Vice President and its corporate seal to be
hereto affixed on this 21st day oflune. 202I.
The Continental Insurance Company
Paul T. Bruflat ice President
State of South Dakota. County of Minnehaha. so:
On this 21st day ofJune. 2021. before me personally came Paul T. Brullat to me known. who. being by me duly sworn. did depose and say: that he
resides in the Cie of Sioux Falls. State of South Dakota; that he is a Vice President of The Continental Insurance Company. a Pennsylvania insurance
company. described in and which executed the above instrument: that he knows the seal of said insurance company; that the seal affixed to the said
instrument is such corporate seal: that it was so affixed pursuant to authority given by the Board of Directors of said insurance company and that he
signed his name thereto pursuant to like authority. and acknowledges same to be the act and deed of said insurance company.
t h BENT 1
tftaotetrn ati
My Commission Expires March 2, 2026
M. Bent Notary Public
CERTIFICATE
I. D. Johnson. Assistant Secretary of The Continental Insurance Company, a Pennsylvania insurance company, do hereby certify that the Power of
Anorney herein above set forth is still in force. and further certify that the By -Law and Resolution of the Board of Directors of the insurance company
printed on the reverse hereof is still in force. to testimony whereof I have hereunto subscribed my name and affixed the seal of the said insurance
company this day of tt rt Q 1
L.. 197 3
The Continental Insurance Company
('O )ZSVVVa,_
D. Johnson Assistant Secretary
Form F6850-4/2012
Go to www.cnasurety.cottt o Owner/ Obligee Services o Validate Bond Coverage, if you want to verify bond authenticity.
160.6
Authorizing By -Laws and Resolutions
\DOM I D R\' TM BOARD OF DIRTCTORS OF TM: CONTINENTAL INSURANCE COMPANY
This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of
the Company at a meeting held on May 10. 1995.
-R1:SOI. VED.. That any Group Vice President may authorize an officer to sign specific documents. agreements and instruments on behalf
of the Company pro, ided that the name of such authorized officer and a description of the documents, agreements or instruments that such
°Meer may sign will he provided in writing by the Group Vice President to the Secretary of the Company prior to such execution
becoming cfleetis e.
This Power of Attorney is signed by Paul T. Bruflet Vice President. who has been authorized pursuant to the above resolution to execution power of
attorneys on behal f of The Continental Insurance Company.
Ibis Power of Attorney is signed and scaled by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of
the Company by unanimous written consent dated the 25. day of April. 2012.
-11`hcreas. the by laws of the Company or specific resolution of the Board of Directors has authorized various officers (the "Authorized
Officers-) to execute various policies, bonds, undertakings and .her obligatory instruments of like nature: end
Whereas. from time to time. the signature of the Authorized Officers, in addition to being provided in original. hard copy format, may be
provided , is facsimile or otherwise in an electronic format (collectively. "Electronic Signatures"), Now therefore be it resolved: that the
Electronic Signature of any Authorized Officer shall be valid and binding on the Company. -
160.7
This Power of Attorney Waite the acts of those named herein, and they have no authority to
bind the Company except in the manner and to the extent herein stated.
Liberty
Mutual.
SURETY
Liberty Mutual Insurance Company
The Ohio Casualty Insurance Company
West American Insurance Company
POWER OF ATTORNEY
Certificate No 8205005.985582
KNOWN ALL PERSONS BY THESE PRESENTS: That The Ohio Casually Insurance Company is a corporation duly oroamzed dander the laws of the State of New Hampshire. that
Liberty Mutual Insurance Company is a caporabon duty organized under the taws of the State of Massachusetts, end West Amerh n Insurance Company is a o eporabon duty orgaraed
undm the laws of the Slate of Indere (herein cotlectrvety called the 'Companies.) pursuant to and by euihonty herein set forth. does hereby name. constitute and appoint, /mica
Alin John f) tiillitantf John I I cmcri N illinm Pfhiterps lr
all or the sty of fan I ran, itstale of CV each sickoduatyr d there be more than one name elf true and lawful attorney -en -fad to make.
execute sea, eonowledge and detwei for and on ds behalf as surety and as As ad and deed, any and all undertakings, bonds, recognu anus and otter surety obligations, et pursuance
of these presents and shall be as bmdmg upon the Compare. as d they have been duly signed by the president and attested by tie se., of the Companies in their own proper
persons
IN WITNESS WHEREOF, the Power of Attorney has been subscribed by an ethenoed officer or Octal of the Companies end the corporate seats of the Companies have been *flexed
hereto tva I ivdh day of March . 2ih21
State d PENNSYLVANIA
County of MONTGOMERY ss
On this loth dayd Mach . 202I babe me personaey appeared David M Carey. who acknoMedged himself fo be the Assistant Secretary of Liberty Mutual Insurance
Company The Ohio Casualty Company. and West Amauan Insurance Company, sd that he. as such, berg cut onzed so to do, execute the foregoing instrument for the purposes
therein contained by sryhxg on behalf of the corporations by himself as a duly authorized officer.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my notarial seal at King of Prussia, Pennsylvania, on the day and year frost above mitten.
Liberty Mutual Insurance Company
The Olio Casually Insurance Company
West American Insurance Company
By:
David M Carey. Assistant Secretary
(:amxr maim W PrnntyNarra Notary See
Tres. Past.. Notary Pubw
uy arntruss on *pre Ararat 1s, 2025
comma,oi nwroar h h2er)er
tnnror Peeeu/nna AmiooM n, d Nrann
By:
erase Pastel*, Notary Public
This Power of Attorneys made and executed pursuant to and by authority of the following By-laws and Authorizations of The Ohm Casualty Insurance Company, Liberty Mutual
Insurance Company, and West American Insurance Company wtudh resolutions are now in hell force and effect reading as follows:
ARTICLE IV - OFFICERS: Section 12 Power of Attorney
Any dicer a other olfaal of the Corporason authorized for that purpose n writing by the Chairman or the President, and skied to such limitation as the Charman or the
President may presahee. shall eppon► suds attorneys..ndad, as may be necessary to act in behalf of the Carpathian to make, execute. seal adm ittedge and deliver as surety
any and ash undertakings. bonds, recogntzances and other surety obfgations Such attorneys -in -fact, subject M the Weakens set forth in their raspedeae powers of attorney. shad
have tut power to bind the Cenporabon by Char signature and execution of any such instruments and to attach thereto the seal of the Corporation. When so executed, such
instruments shat be as binding as d signed by the President and attested to by the Secretary. Any power or authority granted to any representative a attorney -in -fact under the
provisions of sus art. maybe revoked at any time by the Board, the Chairman, the Presder a by the officer a officers granting such parer or authority.
ARTICLE zat - Execution of Contracts: Sedan S. Surety Bands and Undertakings
Any cheer of the Canpany startled for that purpose n writing by the dhaiman a the president and subject to such limitations as the chairman or due president may presahlQ
shad appoint suds attorneys-n•fad, as may be necessary to ad in behalf of the Company to make, execute, seal, ad tseetedge end diver as surety any and all tndetakings.
bards, reoognirances and other surety obigebeee Such attorneys -in -tact subject to the limitations set lath in their respective powers of attorney. shat have ad power to bind the
Company by their signature and exedeen of any such instruments and to attach thereto the seal of the Company. When so executed such insbteeents shad be as binding es d
signed by the president and attested by the secretary.
Certificate of Designation - The President d the Canpany, acting pursuant to the Bylaws of the Company, authorizes David M Carey, Assistant Secretary tp appoint such attorneys -in-
fect es may be necessary toed on behalf of the Company to make. execute, seal, acknowledge and deliver as surety any and ad undertakings, banvds, reccgrisinces and other surely
°bigati=
Authorization - By unanimous consent d the Companys Board of Directors, the Company consents bat facsimile or mechanically reproduced signature of any assistant secretary of the
Company. wthermer appearrg upon a certified copy of any power of attorney issued by the Company n canoection with surely bands, shat be valid and bating upon the Company with
the same bee and effect as ihaigh manually affixed.
I, Renee C Uewelyn, the undersigned, Assistant Secrcretary, The Ohio Casualty Insurance Company, Liberty Mutual kssutendle Company, end West Amwican Insurance Company do
hereby certify that the original power of attorney of which the loregang is a tutu true end correct copy of the Power of Aitamey executed by said Companies, is in toll force and OW and
has not been revoked.
IN TESTIMONY WHEREOF. I have hereunto sot my hand and affixed the seals of said Companies this day of I I r t p i 224
160.8
By:
LYSh297] LMIC 00C W. Mule Co 02121
Renee C Uewelyn, Assistant Secretary
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
Exhibit K — Form O — Performance Bond
161
Weld County, Colorado
PROJECr No. B2400039
Book I - Contract
PERFORMANCE BOND
High Plains Blvd. (CR 9.5) from CR 32 to CR 34
Bond No. Zur 9456329, Fed: K41820494; Cant 30209443; Lib: 070223212
WHEREAS, the Weld County ("Weld County") (referred to herein as "Obligee"), have
Awarded to
Kraemer North America. LLC, a Detaware. LLC ("Principal"), a Design -Build Contract for the High Plains
Blvd. (CR 9.5) from CR 32 to CR 34 dated as of , 2024 (the "Contract"), on the terms and
conditions set forth therein; and
WHEREAS, Principal is required to furnish a bond guaranteeing the faithful performance of its
obligations under the Contract Documents (as defined in the Contract) concurrently with delivery to
Obligee of the executed Contract. Zurich erican insurance Camparz, an NY Corporation
Federal lnsuranoa Comfy' an IN Corporation
The Continental Insurance Company, a PN Corporation
NOW, THEREFORE, Princitbzlrt t lutuat tnsrrrance company, an MA Comorat►oy„), an admitted
surety insurer in the State of Colorado, are held and firmly bound unto Obligee in the amount of $
Twenty -F ue Million and 00/100 Dollars (925.(pp poQ 09) .00 (the "Bonded Sum"),
for payment of which sum Principal and Surety jointly and severally firmly bind themselves and their
successors and assigns.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if Principal shall promptly and
faithfully perform all of its obligations under the Contract Documents, including any and all
amendments and supplements thereto, then this obligation shall be null and void; otherwise it shall
remain in full force and effect.
The following terms and conditions shall apply with respect to this
bond:
I . The Contract Documents are incorporated by reference herein.
2. This bond specifically guarantees the performance of each and every obligation of Principal
under the Contract Documents, as they may be amended and supplemented, including but not
limited to its liability for Liquidated Damages and Warranties as specified in the Contract
Documents, but not to exceed the Bonded Sum.
3. The guarantees contained herein shall survive the final completion of the design and construction
called for in the Contract Documents with respect to those obligations of Principal, which survive
such final completion.
4. Whenever Principal shall be, and is declared by Obligee to be, in default under the Contract
Documents, provided that Obligee is not then in material default thereunder, Surety shall
promptly:
A. Remedy such default;
B. Complete the Project in accordance with the terms and conditions of the Contract
Documents then in effect; or
162
Weld County, Colorado
PROJECT No. 132400039
Book l - Contract
C. Select a contractor or contractors to complete all Work for which a notice to proceed has been
issued in accordance with the terms and conditions of the Contract Documents then in effect,
using a procurement methodology approved by Obligee, arrange fora contract between such
contractor or contractors and Obligee, and make available as work progresses (even though
there should be a default or a succession of defaults under such contractor contracts of
completion arranged under this paragraph), sufficient funds to pay the cost of completion less
the unpaid balance of the Contract Price; but not exceeding, including other costs and
damages for which Surety is liable hereunder, the Bonded Sum.
5. No alteration, modification or supplement to the Contract Documents or the nature of the work to be
performed thereunder, including without limitation any extension of time for performance, shall in any
way affect the obligations of Surety under this bond. Surety waives notice of any alteration,
modification, supplement or extension of time.
6. Correspondence or claims relating to this bond should be sent to Surety at the following address:
Zurich American Insurance Company - Claims
4 Embarcadero, Suit 3740
San Francisco. CA 94111
7. No right of action shall accrue on this bond to or for the use of any entity other than
Obligee or its successors and assigns.
IN WITNESS WHEREOF, Principal and Surety have caused this bond to be executed and delivered as of
July 2 , 2024.
Principal: Kr r NodhAme€ica, LLC
Surety:
its:�:�~� �/tct otevrt-
(Seal)
By; L
: Attamarkn-F ct
(Seal)
[ADD APPROPRIATE SURETY ACKNOWLEDGMENTS]
163
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
Civil Code § 1189
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy or validity of that document.
State of California
County of San Francisco
}
ss
)
On J."- 0 E 7074 , before me, Patricia Arana. Notary Public, personally appeared
Jessica L. Nowlin , who proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) islace subscribed to the within instrument and acknowledged to me that
he,Lshe/they executed the same in hisiher{theic authorized capacity(ies), and that by
his/ her{theif signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
PATRKlA AMA
Notary P.Oc . California
los Angeles County
Commission 0 2401773
y Comm. Expire:Apr 23.2026
•
Signature:
163.1
Patncia Tana, Notary Public
ZURICH AMERICAN INSURANCE COMPANY
C"OI.ONLIL AMERICAN CASUALTI AND SURETY COMPANY
F1DF:1.1 I 1 AND DEPOSIT COMPANY OF MARYLAND
POWER OF ATTORNEY
KN(N ALL 111°N BY I Ill SF PRESLNI S. l hat the ZIJRICFI AMERICAN INSURANCE COMPANY. a corporation of the State of New
York, the COLONIAL, AMT RICAN CASUALTY AND St IRET1' COMPANY, a corporation of the Slate of Illinois, and the FIDELITY
AND DEPOSIT COMPANY Ill MARYLAND a corporation of the State of Illinois (herein collectively called the "Companies"), by Robert
D. Murray. Vito free dam, in pursuance of authority granted by Article V. Section 8. of the By -Laws of said Companies, which are set forth
on the reverse side hereof and are hereby certified to he in full force and effect on the date hereof. do hereby nominate, constitute. and
appoint Anna SWEETEN, Michael E. SHEAHAN. Michael J. HEFFERNAN, Richard S. SVEC, Jessica L. NOWLIN, Chris
FERDERER, Jenny M. GREMILLION, Ian WRIGHT of San Jose, California, of its true and lawful agent and Attorney -in -Fact, to
make, execute. seal and deliver, for, and on its behalf as surety. and as its act and deed: any and all bonds and undertakings, and the
execution of such bonds or undertakings in pursuance of these presents. shall he as binding upon said Companies, as fully and amply. to all
intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the 7,IIRICFI AMERICAN
INSURANCE COMPANY at its office in New York, New York„ the regularly elected officers of the COLONIAL AMERICAN
CASUAL tY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND
DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons.
The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V. Section 8, of
the By -Laws of said Companies. and is now in force,
IN WITNESS 1!'I-1EREI)F, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said
ZURICH AMERICAN INSURANCE COAIPANI', COLONIAL AMERICAN CASUALTY AND SURETY CONIPANY, and
FIDELITY AND DEPOSIT CONIPANY OF MARYLAND. this 24th day of May, A,D 2024.
ATTEST:
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
By. Robert a Altoem r)°
l'ice President
\
Bye Dawn E Brown
Secretary
State of Maryland
County of Baltimore
On this 24th day of May, A D 2024. before the subseriber, a Notary Pub Ix of the State of Maryland, duly eommissicmed and qualified, Robert D.
Murray, /'ire President and Dania. Brass, Secretary of the Companies, to me personalty known to be the individuals and officers desenbed ut and unto
executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, depaseth and with, that he/she is the said otlicer of
the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and
the signature as such officer were duly axed and :absented to the said instrument by the authority and direction of the said Corporations,
M TESTIMONY WHEREOF, I have hereunto set my hared and affixed my Official Seal the day and year first above written
Gef t evleve M. MC[%son
GENEV1EVE M. MAtSON
POW, PIING
BALTIMORE CO NIY, Mtt1
taiCam000tobanainsalaterr.nn
Authenticity of this bond can be confirmed at bondvalidstor.zuricbaa.com or 410-559-8790
163.2
EXTRACT FROM BY-LAWS OF THE COMPANIES
"Article V. Section 8. Attomct s -in -Feel The Chief Executivc Officer, the President. or any Executive Vice President or Vice President
may. by written instrument under the attested corporate seal. appoint attorneys -in -fact with authority to execute bonds. policies.
rccognwances. stipulations. undertakings. or other lily instruments on behalf of the Company. and may authorize any officer or any such
attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any
time"
CERTIFICATE
I. the undersigned. Vice President of the ZURICH AMERICAN INSURANCE COMPANY. the COLONIAL AMERICAN
CASL'AO. TY AND SURETY COMPANY. and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. do hereby certify that the
foregoing Power of Attorney is still in full force and effect on the dale of this certificate: and I do further cenify that Artick V, Section 8, of
the Loy -Laws of the Companies is still in force.
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the ZURICH AMERICAN INSURANCE COMPANY al a meeting duly called and held on the 15th day of December 1998.
RESOLVED, "That the signature of the President or a Vicc President and the attesting signature of a Secretary or an Assistant Secretary
and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such
facsimile signature and seal shall be valid and binding on the Company."
This Power of Attorney and Certifieate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of
May. 1994. and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a
meeting duly, called and held on the 10th day of May. 1990.
RESOLVED: 'That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature
of any Vice -President, Secretary. or Assistant Secretary of the Company. whether made heretofore or hereafter. wherever appearing upon a
certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect
as though mutually affixed.
IN TESTIMONY WHEREOF. 1 have hereunto subscribed my name and affixed the corporate seals of the said Companies,
this day of 2:2, 0
Thomas O. McClellan
Vice President
TO REPORT A CLAIM WITH REGARD TO A SURETY BOND, PLEASE SUBMIT A COMPLETE DESCRIPTION
OF THE CLAIM INCLUDING THE PRINCIPAL ON THE BOND, THE BOND NUMBER, AND YOUR CONTACT
INFORMATION TO:
Zurich Surety Claims
1299 Zurich Way
Schaumburg, IL 60196-1056
repottsfclaimstjztnichna.com
800-626-4577
Authenticity of this bond can be confirmed at bondvalidator.eurichna.com or 410-559-8790
163.4
CHUB
Power of Attorney
Federal Insurance Company ( Vigilant insurance Company ( Pacific Indemnity Company
Westchester Fire Insurance Company j ACE American Insurance Company
Enos All by These Presents, that FEDERAL INSURANCE COMPANY, an Indiana cnrpnratlun, VIGILANT INSURANCE COMPANY, a New Ynrk corporation. PACIFIC INDEMNITY
COMPANY a Wis<onstn corporation, WESTCHESTER FIRE INSURANCE COMPANYand ACE AMERIGN INSURANCE COMPANY corporations of the Commonwealth of Pennsylvania,
+ > tai n heti, roirt Mite and appoint Al ichael J. Nefferna n, Jessica L. Nowlin, Michael E. Sheahan, Richard S. Ss'ec, Anna Sweeten and fan Wright
ofSan Jose, California -- _-------- ---- ---�_-----�__�-- ---------_--------__------_-_- _.__ ___�___ _____--- ----
car h as then true and IAwfuE Annrney in -Fact to eswar under with designation in their names and to Allis their rrpnrate seals to and deliver instil on their behalf as surety thereon
a,r theca ism, htintls and unlrrtakings and other wrteings Mitigatory In the ruling. thereat (other than had bonds) given err rsecuted in the (none of business, and any Instruments
amending or altering the same, and csensrnts to the modification or alteration of any instrument referred to in said hoods or obllgalhtns
In Witness Where. said FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, PACIFIC MOEN., COMPANY, WESTCHESTER FIRE INSURANCE COMPANY
and ACE AMERICAN INSURANCE COMPANY have each eset ilea and attested these presents and affixed their rrporate seals on this 29* day of Daly, 2022.
:3 LI.s - Th. 6KLs[ kkii � feel
Bran tl l`hknt4 A.wttant Stephen 51, ilam , Vim Presdent
STATE OF NEW JERSEY
County of Hunterdon
SS
On this 24. day of toly, 2022 before me, a Notary Public of him lersry, personally pine Dawn M Chloros and Stephen M Haney, to me known to be Assistant Secretary and Vice
President respectively, of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE COMPANY and ACE
AMERICAN INSURANCE Ct?MPANV, the companrvs S.. executed the foregoing Power of Attorney, and the said Dawn M. Chloros and Stephen M. Haney, being by me duly sworn.
Severally and each tar herself and himself did depose and say that they are Assistant Secretary and Vice President, respectively, of FEDERAL INSURANCE COMPANY, VIGILANT
INSURANCE COMPANY, PACIFIC INDEMNITY COMPANY, WETICHEETER FTRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY and know the corporate seals
thew(. that the seats afraid to the foregoing Power of Attorney are such corporate seals and were thereto affixed by authority of said Companies: and that their slgrratures y such
officers were duly afro.. and subscribed by like authority
Notarial Seal
ItATT1ERilr! �. AOELANI
No (may PUBLIC or NM JEltOre
No 22165.6
C.narrron Rome. J., 10. 2004
CERTIFIGTION
Resolutons adopted by the Boards of Directors of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, and PACIFIC INDEMNITY COMPANY on August 30, 2016;
WESTCHESTER FIRE INSURANCE COMPANY on December 11.2006; and ACE AMERICAN INSURANCE COMPANY on March 20, 2004,
E5t1O., that the Mar. eutboriaukim War m tar emotion. br and on behar of the Compas , of hated* undertakings, nteopttaancen contracts and other written commitments of the Company
the ordinary course of btwneu (each a 'Venue. Common*,
fact or the Chaim. the Prudent and tae Vice Prestdenu of the Company le beteby mob.. to montane Weioen Commitment for and on behalfof the Company, under the seat
at tae Camp, or oder..
(i L Earl duly appomated atmrner,in fan of the C Lepany a hereby euthortted m esec .any r.nitro Cammitms.l br and tm behalf of the Campany, under the seal of the Company ar ahem .
to tae eateat toot sncl scion m a.ehorted by the ffant d poaren praelded for to sacih person s wrntLn appGnenrne as such attooney�n.het
CI} Eed s or tar Chain.+a the Pres.. and the Via Preside. of thin Wrhpam n hereby arthented, for and on bemires( . Company, to appoint m wttiitntP airy term. the ettorney•ur
oa or the Company with NU pouter 'Mambo,toexecute, tar and on beaallal.Compasy. render the sealants..., Written Commute of the Company
fi
tly ay Or spatted m sorb won. appointment which spernccaum may bit by general type a clan of Wien Coiemryrmu or by sproflamion of ore or more parnedar written
Conir.onenta
(a J Ends of Me Chao.* the President and the no P esdentiof eke Comp.. to hereby author*. br and on behalf of the Co.., to delegate M vnWp to airy other oPk.r a/ the
Company ate auths+ry to mew. br and oa behalf of the Company, U.. tie Coepa., seat or otherwise, such Written Comma.. or the Cmepany at Ara speclfkd hi potA written
d ..monwhichspeditrauon nay try by general type or clonal Written Caamlonents or byspecdicatbnatoneornu. paRkvlarWritten fammlements
(S) The upstate of arty ollker or caw person awaiting any Written Commitment or appointment or dr4ptbn p.0 mint to this Ilmlutloil end the smai of the Coin
laesnuir tie aueb wire raawaiarar d tnnen appalm...r or deleFeune Wray,. nay IK aflhmd ti
FtIRTN ER RESOLVED, that the romps. Itmoluuon roar not be derma o be an earl.. staieioent edthe pm. and mi., or cancers, employ. and other pavans to act far and on bett.d of thin
Company, and tq4 analmio. coop not Nina or of erittee Amts the anew M arty amb Paw.m suu*.atteothe valhly panted or vested'
I, Dawn M. Chimes, Assistant Secretary of FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY. PACIFIC INDEMNITY COMPANY, WESTCHESTER FIRE INSURANCE
COMPANY and ACE AMERICAN INSURANCE COMPANY (the -Companies-1 do hereby certify that
(1) the foregoing Resolutions adopted by the Board of Directors of du Companies are we, correct and In fun force and effect.
OH the foregoing Power of Attorney Is true, correct and fn full ferry and effect
ti}
Given under ley hand and seals of said Companies. at Whltehoose Station, NI, this II ! I Q 22924
Coon Ail Mores. Aslot]I1(Set-romf
j IN THE EY@n YOU oKNTO 02000 THE AUTHENTICITY OF THIS POND 0k NOTIFY US OF ANY OTNEA MATTER PM. CONTACT DS AT:
t Telephone (901!]903.3N] Fes _1,1H403.7a% imam' suvtyethrbbrem
163.5
Cmroinad. FEDVIG PI-SWICJiAIC Mee 1,10,
PON% ER OF AITORNEI APPOINTING INDIVIDUAL ATTORNEY -IN -FACT
Noon ,Sit ,ten By Thew Present_.. That the Continental lnsumncc Company. a Pennsylvania insurance company. is a duly organized and existing
insurance company having its principal office in the City 1,1 -Chicago. and State of Illinois. and that it does by virtue of the signature and seal herein
ttl i n d hereby make. constitute and appoint
David Lawrence Alvarado. Jessica L Nowlin, John Gilliland. John T. Lettieri. Individually
of San Francisco. C.A. its true and lawful Attorncytst-in-tact w ith full power and authority hereby conferred to sign. seal and execute for and on its
behalf -bonds. undertakings and ether obligatory instruments of similar nature
- In Unlimited Amounts -
and to hind them thereby as fully and to the same extent as if such instruments were signed by a duty authorized officer of the insurance company and all
the acts of said Attorney. pursuant to the authority hereby given is hereby ratified and confirmed.
This Povver of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duly
adopted. as indicated. by the Board of Directors of the insurance company.
In Witness SO hereof. The Continental Insurance Company has caused these presents to be signed by its Vice President and its corporate seal to be
hereto affixed on this 21st day of line. 2021.
3
The Continental Insurance Company
Paul T. Bruflat ice President
State of South Dakota. County of Minnehaha. ss:
On this ?1st day of lure. 2021, before me personally came Paul T. Oeotlot to me known, who, being by me duly sworn. did depose and say: that he
resides in the City of Sioux Falls. State of South Dakota: that he is a Vice President of The Continental Insurance Company. a Pennsylvania insurance
company. described in and which executed the above instrument: that he knows the seal of said insurance company; that the seal affixed to the said
instrument is such corporate seal: that it was so affixed pursuant to authority given by the Board of Directors of said insurance company and that he
signed his name thereto pursuant to tike authority. and acknowledges same to be the act and deed of said insurance company.
Kean
I
Mouarrrnucs4
swrw raspooa t
•
My Commission Expires March 2. 2026
et.„,i-
M. Bent Notary Public
CERTIFICATE
I. D. Johnson. Assistant Secretary of The Continental Insurance Company. a Pennsylvania insurance company, do hereby certify that the Power of
Attorney herein above set forth is still in force, and further certify that the By -Law and Resolution of the Board of Directors of the insurance company
pointed on the reverse hereof is still in force. In testimony whereof 1 have hereunto subscribed my name and affixed the seal of the said insurance
company this day of
The Continental Insurance Company
D. Johnson Assistant Secretary
Foam F6850-4/2012
Go to www.cnasuretv.com > Owner/ Obligee Services > Validate Bond Coverage, If you want to verify bond authenticity.
163.6
Authorizing By -Laws and Resolutions
Al)OI'TED BY MU BOARD OF OIRECfORS OF DIE CONTINENTAL INSURANCE COMPANY
l his Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of
the Company at a meeting held on May 10. 1995.
"RESOLVED: That any Group Vice President may authorize an officer to sign specific documents. agreements and instruments on behalf
of the Company provided that the name of such authorized officer and a description of the documents. agreements or instruments that such
officer may sign will be provided in writing by the Group Vice President to the Secretary of the Company prior to such execution
becoming effective.
This Power of Attorney is signed by Paul T. Brunt. Vice President. who has been authorized pursuant to the above resolution to execution power of
attorney s on behalf of Thc Continental lnsuranoe Company.
This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of
the Company by unanimous written consent dated the 25• day of April. 2012.
"Whereas, the bylaws of the Company or specific resolution of the Board of Directors has authorized various olTicers (the "Authorized
Officers") to execute various policies, bonds. undertakings and other obligatory instruments of like nature; and
Whereas. from time to time, the signature of the Authorized Officers. in addition to being provided in original, hard copy format. may be
provided via facsimile or otherwise in an electronic format (collectively. "Electronic Signatures"). Now therefor: be it resolved: that the
Electronic Signature of any Authorized Officer shall be valid and binding on the Company."
163.7
Liberty
Mutual..
SURETY
This Power of Attorney tints the acts of those named herein, and they have no authority to
bind the Company except In the manner and to the extent herein stated.
Liberty Mutual Insurance Company
The Ohio Casualty Insurance Company
West American Insurance Company
POWER OF ATTORNEY
Cankers No 8205005-985582
KNOWN ALL PERSONS BY THESE PRESENTS: That The Ohio Casualty Insurance Company s e corpeadon duly agenaed under the laws d be Stale of New Hampshire. that
1_ berry Mutual Insurance Company is a oaparabon duly organized under the laws of the Stale d Massachusetts, and West American Insurance Company is is =partition duly organized
under the laws of the Stated Indiana (herein caftan.* called the'Campeoes"), pursuant to and by euthonly heron set fort, does hereby name, conslNte end apparel, Jessica L.
Nnarl n John U Gdhland, fn. T I t1'elham PhrlIhp Jr
all of the oty of San Pronoun stated CA each ndmdudly d there be more than one named, btu. and lawful attorney -In -fad to make.
execute, seal acknowledge and deliver, fa and on its behalf as surely and as its act and deed. any end as undertakings, bards. recognaances and other surety obligations. 5-n pursuance
of these presents and shall be as binding upon the Companies as it they have been duly signed by the president and attested by the secretary of the Companies in bee eon proper
persons
IN WITNESS WHEREOF, the Power of Attorney has been subsrnhed by an authorized officer or offaal of the Companies and the corporate seals of the Companies have been affixed
thereto the both day of !larch 2021
By:
Stated PENNSYLVANIA
County of MONTGOMERY gE
g E
on this WO day d March . 2021 before me persamly appeared David M Carey. who acknowledged himself to be the Assistant Secretary d liberty Mutual Insurance i392
Company. The Ohio Casualty Company, and West American Insurance Company, and bathe. as such. bang authorized so to do. execute the foregoing instrument far the purposes c
the. moaned by sgrrg on behalf d see corporation by himself as a duly authorized dicer
IN WITNESS WHEREOF,' have hereunto suttsarbed my name and affixed my notarial seat at ling d Busse, Pennsylvania. on the day and year first above written
� eEh
4p`
GQ
The Power of Attorney is made and executed pursuant to and by et fleny of the knowing By.leas and Authorizations of The Ohio Casualty Msuraeco Company, Liberty MAW 35.
Insurance Company. and West Amman Insurance Company studs resolutions are now in fur force and effect reading as flaws:
ARTICLE IV — OFFICERS: Section 12. Power d Money Le-
My dim or other official of the Capra.e authorized for owl purpose in willing by the Chairman err the President and subject to such limitation as the Chairman as the Presilenrimy ptesalae, apix. sudi albxneys-in-fad. as may be necessary to act is behalf of Ihe Cmpccabon to make. execute. seat admordedge and deliver as surety 5
any a d al undertakings, bards, reoogdaances and dlier surety abigabans Such aftomeys-n-fad. subject to the imitations set forth in their respective powers of storey. shel 'o 5
have tad power to bind the Caporatidn by their sgnatue and mention of any such instruments and to attach thereto the seat d the Corporation. When so mooted, such.§ s
nomads shat as timing hdng as d' signed by the President and attested to by the Secretary. Any power or authority granted to any representative a attorney -in -bad under the 0 co
provisions of tiro article may be revoked at sr y tine by the Board. the Chairman, the President or by the offioa a officers granting such power a authority.
ARTICLE XIN —Execution of Contracts: Section S. Surely Bonds and Undertakings.
Any ofim d the Company autrheeOed for shat purpose in writing by the chairman or the president and soled to a...lions as the dwirman a the president may prescribe,
shall appoint such attorneys-Xi-bd. as may be necessary to oat in behalf d the Company to make, execute. seat. &di mwredge and debit as surety amy and WI undertakings,
bonds, reognizances and obey surety obligations. Suds eaaeea s-i -fad subjs... hfdadans set forth in their respective powers of atlp, shall have fur power to bind the
Company by their signabxe and execution d any such intrunafls and to attach thereto the sod d the Company. When so executed such instruments shall be es hinting as if
signed by the presidad usd athated by the secretary.
ceebHcate et Desianatiorh — The Pranden! d the Company, acing polluted to be thins of the Company. authorizes David to Carey, Assistant Seaefary to ippedte sad; eaaneysin-
fact as maybe necessary to ad on behalf al the Company to snake, execute, seat, aduhoniedge and deiva as suety any and el undertakings, bonds, mecognaancea and other surety
obigaucas,
Authorization —By unarhimohn consent d the Conpanlls Bated CA Directors. the Company consents trial *semis a medtaricatyr reproduced signature of any assistant secretary d the
Company, wherever wearing upm a canted dopy d any poem d attorney issued by the Company n comedian with surety bands, steal be void and bind g upon the Company siell
the same force and effeel as though nunhuty Moved.
I, Ranee C. Uewelyn, the undersigned. Assistant Secretary, The Ohio Casualty !memos m os Comp, Liberty Mutual Insurance Carrhpeny, and West M oncan insurance Company do
hereby comity that the afgnd power of esa ney d stsdl the foregoing t, a tut, true and affect copy d the Paver d Attorney catcalled by said Companies, Oh full tome and affect and
has not been revoked.
IN TESTIMONY WHEREOF, I have tnaeunl° sal my hand and skied the seals d said Companies this day of
Tr r+2717-
Liberty Mutual khsutence Company
The Ohio Casually Insurance Company
West American Insurance Company
Oeerd M Carey. Assistant Secretary
Carnvmarrin d Pirmykane - Maury Seai
FM. Wary ke.
Llollpormry tardy
cur camwmn ages f mill 2e. 206
Common rimer 1 t260N
Amway. Ay Near.*
By: PIA.) 144-14,
sera Pasada. Nday Pubfic
163.8
ert
txstzen Lkhtc ocaC WArC sure co 02!21
Renee C. Lbeellyn. Assistant Secnatary
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
Exhibit L — Weld County Forms
164
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
NOTICE OF AWARD
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
Kraemer North America, LLC
Attention: Mike McNish
900 West Castleton Road, Suite 220
Castle Rock, CO. 80109
Project Description: High Plains Blvd. (CR 9.5) from CR 32 to CR 34
This project in general consists of designing and constructing a new roadway between Weld County Road (WCR)
32 and WCR 34 along the proposed alignment of High Plains Blvd. (A.K.A. — WCR 9.5). The new roadway will
also include two new intersections where High Plains Blvd. intersects with WCR 32 and WCR 34. The project will
also include but not be limited to: acquisition of public right-of-way and easements, permitting of floodplain
encroachments, construction of drainage features, construction of accesses, communications with various
organizations and individuals, maintenance activities, etc.
The Owner has considered the Proposal submitted by you for the above described Work in response to its Request
for Proposal and subsequent selection process.
You are hereby notified that your Proposal has been accepted in the not to exceed Guaranteed Maximum Price
amount of $25,000,000.00 or as shown in the RFP response on Form J. You are required by the
Instructions to Bidders to execute the Contract and furnish the required Performance Bond, Payment Bond and
Certificates of Insurance within ten (10) calendar days from the end of negotiations.
If you fail to execute said Agreement and to furnish said Bonds within the said timeframe outlined above, said
Owner will be entitled to consider all your rights arising out of the Owner's acceptance of your bid as abandoned.
The Owner will be entitled to such other rights as may be granted by law.
You are required to return an acknowledged copy of this Notice of Award to the Owner.
Dated this 15t day of July , 2024
ACCEPTANCE OF NOTICE
Receipt of the above Notice of Award is hereby acknowledged by
Kraemer North America, LLC (Contractor)
Dated this 2nd
By: �1 `
day of July
Weld County. Colerada. Owner
�.E., Sr. gineer
, 2024
Title: Sr. Vice President
165
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
NOTICE TO PROCEED
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
FIRM
Attention: DESIGN BUILD MANAGER
ADDRESS LINE 1
ADDRESS LINE 2
Date:
PROJECT:
B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34 described in the Invitation for Bids, Bid No.
B2400039.
You are hereby notified to commence Work in accordance with the Agreement dated . The date of
completion of all Work is therefore December 31, 2025.
ACCEPTANCE OF NOTICE
Receipt of the above Notice to Proceed
is hereby acknowledged by:
(Contractor)
By
Cameron Parrott, P.E., Sr. Engineer
Weld County, Colorado, Owner
Dated this day of , 2024.
By
Title
166
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
CHANGE ORDER NO. (EXAMPLE)
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
Date:
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34 described in the Invitation for
Bids, Bid No. B2400039.
Owner: Weld County, Colorado
Contractor:
The following change is hereby made to the Contract Documents:
HANGE TO CONTRACT PRICE:
Original Contract Price:
Current Contract Price adjusted by previous Change Order:
The Contract Price due to this Change Order will be increased by:
The new Contract Price, including this Change Order, will be:
CHANGE TO CONTRACT TIME:
The Contract Time will be increased by calendar days.
The date for completion of all Work will be
167
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
RECOMMENDED:
Owner Representative: Date:
P.E. (Project Manager)
Engineer: Date:
APPROVALS:
Contractor: Date:
WELD COUNTY:
ATTEST:
Weld County Clerk to the Board
BY:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Deputy Clerk to the Board Board of County Commissioners, Chair
APPROVED AS TO FUNDING: APPROVED AS TO SUBSTANCE:
Controller Elected Official or Department Head
APPROVED AS TO FORM:
County Attorney
Director of General Services
168
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
FORCE ACCOUNT — MINOR CONTRACT REVISION NO. (EXAMPLE)
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
Date:
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34 described in the Invitation for
Bids, Bid No. B2400039.
Owner: Weld County, Colorado
Contractor:
The following change is hereby made to the Contract Documents:
Force Account Balance:
Current Price Adjustment:
Remaining Force Account Balance:
RECOMMENDED:
Owner Representative: Date:
(Project Manager)
Engineer: Date:
APPROVALS:
Contractor: Date:
WELD COUNTY: Date:
(Public Works Director)
169
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
CERTIFICATE OF SUBSTANTIAL COMPLETION
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
Owner's Project No: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
Engineer's Project No:
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34 described in the Invitation for
Bids, Bid No.B2400039.
Contractor:
Contract For: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34described in the Invitation for
Bids, Bid No.B2400039.
Contract Dated:
This Certificate of Substantial Completion applies to all Work under the Contract Documents except for the following
specified parts thereof
The Work to which this Certificate applies has been inspected by authorized representatives of the Owner, Contractor
and Engineer, and that Work is hereby declared to be substantially complete in accordance with the Contract
Documents on
Date of Substantial Completion
A list of items to be completed or corrected is attached hereto. This list may not be all-inclusive, and the failure to
include an item in it does not alter the responsibility of the Contractor to complete all the Work in accordance with
the Contract Documents. The items in the list shall be completed or corrected by the Contractor within days
of the above date of Substantial Completion.
To be effective, this form must be signed by the Owner, the Engineer, and the Contractor.
Owner: Date:
Engineer: Date:
Contractor: Date:
170
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
LIEN WAIVER (GENERAL CONTRACTOR)
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
TO: Weld County Public Works
P.O. Box 758
Greeley, Colorado 80632
Gentlemen:
Fora valuable consideration paid by the Board of County Commissioners of Weld County, the receipt and sufficiency
of which is hereby acknowledged, the undersigned hereby, releases unto Weld County and to its heirs, executors,
administrators or assigns, all rights of the undersigned to claim a mechanic's lien for material heretofore furnished for
use in and for labor heretofore performed upon the construction, alteration, addition to or repair of the structures or
improvements described in the Contract Documents as:
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34 described in the Invitation for
Bids, Bid No. B2400039.
Contractor:
(If no legal description is shown following the description of Project, we acknowledge that the foregoing is an adequate
description of the real properties and improvements inasmuch as the foregoing is the description given in the Contract
Documents which govern the performance of the Work for which consideration has been received.)
In executing this release, we certify that all claims for labor, or materials, or both, furnished or performed on our
behalf by our material suppliers or subcontractors have been paid or that satisfactory arrangement for payment has
been made. We agree to defend Weld County from any and all claims on the part of our material suppliers, laborers,
employees, servants and agents or subcontractors arising from our Work on the Project, and we further agree to
reimburse the Board of County Commissioners of Weld County for any and all costs, including reasonable attorney
fees, which they may incur as a result of such claims.
Contractor
By:
Title:
Date:
STATE OF
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this day of , 2024, by.
My commission expires:
Notary Public
171
Weld County, Colorado
PROJECT NO. B2400039
Book 1 - Contract
FINAL LIEN WAIVER (SUBCONTRACTORS)
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
To All Whom It may Concern:
WHEREAS, the undersigned has been employed by (A)
to furnish labor and materials for (B)
work, under a contract (C)
for
the improvement of the premises described as (D)
County of , State of
of which
is the Owner.
NOW, THEREFORE, this day of , 2024,
for and in consideration of the sum of (E)
Dollars paid simultaneously herewith, the receipt whereof is hereby acknowledged by the undersigned, the
undersigned does hereby waive and release any lien rights to, or claim of lien with respect to and on said above
described premises, and the improvements thereon, and on the monies or other considerations due or to become due
from the Owner, on account of labor, services, material, fixtures, apparatus or machinery heretofore or which may
hereafter be furnished by the undersigned to or for the above described premises by virtue of said contract.
(F) (SEAL)
(Name of sole ownership, corporation or partnership)
(Affix Corporate seal here)
(SEAL)
(Signature of Authorized Representative)
Title:
INSTRUCTIONS FOR FINAL WAIVER
(A) Person or firm with whom you agreed to furnish either labor, or services, or materials, or both.
(B) Fill in nature and extent of work; strike the word labor or the word materials if not in your contract.
(C) If you have more than one contract on the same premises, describe the contract by number if available, date
and extent of work.
(D) Furnish an accurate enough description of the improvement and location of the premises so that it can be
distinguished from any other property.
(E) Amount shown should be the amount actually received and equal to total amount of contract as adjusted.
(F) If waiver is fora corporation, corporate name should be used, corporate seal affixed and title of officer signing
waiver should be set forth; if waiver is fora partnership, the partnership name should be used, partner should
sign and designate themseles as partner.
172
Weld County, Colorado
PROJECT No. B2400039
Book 1 - Contract
NOTICE OF ACCEPTANCE
PROJECT: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34
TO:
Date:
RE: B2400039 - HIGH PLAINS BLVD. (CR 9.5) From CR 32 to CR 34 described in the Bid No. B11400202.
This is to inform you that the above referenced job, has been satisfactorily completed in accordance with the Contract
Documents and is hereby accepted. Final payment will be made on or about
Final acceptance does not relieve the Contractor of the minimum one (1) year guarantee on all work and materials
incorporated into this Project. Such guarantee shall begin on the date of this acceptance.
ACCEPTANCE OF NOTICE
Receipt of the above Notice of Acceptance
is hereby acknowledged by:
Dated this day of , 2024.
By:
Cameron Parrott, P.E., Sr. Engineer
Weld County, Colorado, Owner
By
(Contractor)
Title
173
Contract Form
Entity Information
Entity Name* Entity ID*
KRAEMER NORTH AMERICA LLC @00047950
❑ New Entity?
Contract Name* Contract ID
HIGH PLAINS BLVD. (CR 9.5) DESIGN -BUILD PROJECT 8494
FROM CR 32 TO CR 34
Contract Status
CTB REVIEW
Contract Lead *
CPARROTT
Contract Lead Email
cparrott@co.weld.co.us
Parent Contract ID
Requires Board Approval
YES
Department Project #
GR-73
Contract Description*
DESIGN, ROW ACQUISITIONS, UTILITY RELOCATIONS, AND CONSTRUCTION OF A NEW ROADWAY BETWEEN WCR
32 AND WCR 34 APPROXIMATELY 1/4 MILE EAST OF 1-25
Contract Description 2
Contract Type"
CONTRACT
Amount*
$25,000,000.00
Renewable*
NO
Automatic Renewal
Grant
IGA
Department
PUBLIC WORKS
Department Email
CM-
PublicWorks@weldgov.co
Department Head Email
CM-PublicWorks-
DeptHead@weldgov.com
Bid/RFP #*
County Attorney B2400039
KARIN MCDOUGAL
Requested BOCC Agenda Due Date
Date* 07/13/2024
07/17/2024
Will a work session with BOCC be required?*
HAD
Does Contract require Purchasing Dept. to be
included?
YES
County Attorney Email
KMCDOUGAL@CO.WELD.C
O.US
If this is a renewal enter previous Contract ID
If this is part of a MSA enter MSA Contract ID
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts
are not in OnBase
Contract Dates
Effective Date
Termination Notice Period
Contact Information
Contact Info
Review Date *
11/30/2025
Committed Delivery Date
Renewal Date
Expiration Date*
12/31/2025
Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2
Purchasing
Purchasing Approver Purchasing Approved Date
CONSENT 07/16/2024
Approval Process
Department Head
.CURTIS HALL
DH Approved Date
07/16/2024
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
07/17/2024
Finance Approver
CONSENT
Legal Counsel
CONSENT
Finance Approved Date Legal Counsel Approved Date
07/16/2024 07/16/2024
Tyler Ref #
AG 071724
Originator
CPARROTT
MEMORANDUM
Date: July 9, 2024
To: Toby Taylor, Procurement Manager
From: Cameron Parrott, P.E., Senior Engineer
RE: Bid Request No. B2400039-1
High Plains Blvd. (CR 9.5) Design -Build Project Between
CR 32 and CR 34 - Recommendation for Award
The qualification based selection process for the project began on December 5, 2023 with the
request for letters of interest. From that process, 9 letters of interest were received. The
second step of the process was the request for qualifications from the interested firms which
were sent out on December 28, 2023. 5 teams responded with qualifications, and from those 5
teams 3 were shortlisted to continue into the request for proposals phase of the procurement
process. The 3 firms that were short listed were presented to the BOCC on February 14, 2024.
Proposals were received on April 2, 2024, from 2 of the short listed design -build teams. The 3rd
short listed team declined to submit a proposal. The 2 design -build teams that submitted
proposals were Kraemer North America, LLC teamed up with RMS Inc. and WW Clyde teamed
up with Felsburg Holt and Ullevig.
The submitted proposals have been reviewed and scored by a scoring committee of 5
members. The selection committee was unanimous with their rankings of the submitted
proposals shown in the attachment. The Kraemer North America, LLC team was determined to
have the top ranked proposal and was approved to begin the contract negotiation process in a
passaround dated April 22, 2024. Staff has since then negotiated a guaranteed maximum
contract price for this project with the Kraemer North America team.
It is staffs recommendation to award the design -build contract to Kraemer North America, LLC
for a guaranteed maximum price of $25,000,000.00. Public Works has worked successfully
with this Contractor in the past, on large projects. If this proposal is approved by the BOCC,
work will start immediately and is planned to be completed by the end of the year in 2025.
Zort4 -0384
7A 5
Attachment
Date: 4/19/24
REP SCORING SUMMARY
High Plains Blvd. (CR 9.5) Design -Build Project Between WCR 32 and WCR 34
Proposal Request No. B2400039-1
Design -Build Team
Kraemer NA/RMS
Scorer #1
WW Clyde/FHU
Zack Dirt/Wilson & Co.
1
2
Scoring Committee Member's Rankings
Scorer #2
Scorer #.
1
2
2
Scorer #4
1
Scorer #5.
1
10
unresponsive - did not submit
Lower Iota' = Higher Ranking
Contract #8494
WELD COUNTY PURCHASING
1301 N. 17TH Avenue, Greeley, CO 80631
E-mail: reverett(6.weldgov.com
E -Mail: cgeisert@weldgov.com
Phone: 970)400-4222, 4223
LETTER OF INTEREST - DECEMBER 5, 2023
REQUEST FOR: HIGH PLAINS BLVD (CR 9.5) DESIGN -BUILD PROJECT - RFQ PHASE
DEPARTMENT: PUBLIC WORKS
BID NO: B2400039-1
PRESENT: FEBRUARY 14, 2024
APPROVALD - JULY 15, 2024
VENDORS
KRAEMER NORTH AMERICA LLC
900 WEST CASTLETON RD, STE 220
CASTLE ROCK CO 80109
ZAK DIRT INC
14290 HILLTOP ROAD
LONGMONT CO 80504
WW CLYDE
10303 DRY CREEK ROAD SUITE 300
ENGLEWOOD, CO 80112
***THESE ARE THE FIRMS THAT ARE SELECTED FOR THE SHORTLIST QUALIFICATIONS FOR
THE ABOVE PROJECT****
7A5
Zp2`4 - 0384
ECiOna
WELD COUNTY PURCHASING
1301 N. 17TH Avenue, Greeley, CO 80631
E-mail: reverett(weldgov.com
E -Mail: cgeisert@weldgov.com
Phone: 970)400-4222, 4223
LETTER OF INTEREST - DECEMBER 5, 2023
REQUEST FOR: HIGH PLAINS BLVD (CR 9.5) DESIGN -BUILD PROJECT - RFQ PHASE
DEPARTMENT: PUBLIC WORKS
BID NO: B2400039-1
PRESENT: FEBRUARY 14, 2024
APPROVAL: TBD
VENDORS
KRAEMER NORTH AMERICA LLC
900 WEST CASTLETON RD, STE 220
CASTLE ROCK CO 80109
ZAK DIRT INC
14290 HILLTOP ROAD
LONGMONT CO 80504
WW CLYDE
10303 DRY CREEK ROAD SUITE 300
ENGLEWOOD, CO 80112
***THESE ARE THE FIRMS THAT ARE SELECTED FOR THE SHORTLIST QUALIFICATIONS FOR
THE ABOVE PROJECT****
2024-0384
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