Design build CC DNR form 062013.doc

ROUTING # 15-PMA-

Core #

STATE OF COLORADO

DESIGN/BUILD CONTRACT AGREEMENT

THIS AGREEMENT, Made this _____ day of __________________ 2015, by and between the STATE OF COLORADO for the use and benefit of the Department of Natural Resources, Colorado Division of Parks and Wildlife, 1313 Sherman Street, #615, Denver, CO 80203, hereinafter referred to as the State, and______, hereinafter referred to as the Contractor.

FACTUAL RECITALS

Authority exists in the Law and Funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment; and

The required approval, clearance and coordination has been accomplished from and with appropriate agencies; and

The State desires the construction of ____Project, Bid Number: and capacity to fulfill necessary requirements by the date required.

The Contractor was selected as the most advantageous proposal received in response to RFP# PBA-1335 under the Colorado Procurement Code, Section 24-103-203, C.R.S. as amended.

NOW THEREFORE, it is hereby agreed that:

1.

The Contractor will in good workmanlike manner at the contractor’s own cost and expense and strictly in accordance with the Contract documents, as defined in the General Requirements and Covenants for Capital Construction, published by the Division of __________ in ______ and as supplemented in January 2003, a form of which is attached as Exhibit A, furnish all materials and do all work described or shown in, or reasonably implied by the Contract documents.

2.

The contract documents, including this Agreement, as described in Section ___ of the General Requirements and Covenants, published by the Division of _____ in ####, and as supplemented in January 2002, (see Exhibit A), together with such alterations and modifications as may be in accordance with the provisions of the plans and specifications, are each and all incorporated by reference and made a part of the project Contract.

3.

The STATE OF COLORADO agrees to pay the Contractor for performance of this agreement, subject to any additions or deductions as provided in the Contract documents, the sum of Numbers Twenty One Thousand Dollars and Numbers Cents ($###,###.##). The State of Colorado reserves the right to adjust the contract amount for estimated quantities of work to be performed and materials to be furnished by issuing a Final Quantities Contract Modification Agreement a form of which is attached as Exhibit B. All modifications to the project scope and/or price as described in the General Requirements and Covenants for Capital Construction, published by the Divison of ______, YEAR shall be accomplished by the issuance of a Standard or Emergency Contract Modification Agreement a form of which is attached as Exhibit B.

4.

Time is of the essence in the performance of the contract, and work shall begin under the Contract within 10 days from date of "Notice to Proceed". Contractor agrees to proceed with due diligence, completing all specified work within Number (###) days from said date unless additional time shall be allowed by the State through the issuance of a Contract Modification Agreement (see Exhibit B) or other methods as described in the General Requirements and Covenants for Capital Construction.

5.

The Contractor agrees that his failure to complete the work within the time allowed shall be considered as a breach of the Contract and entitles the STATE OF COLORADO to collect liquidated damages for delay in completion in the amount specified in the Invitation for Bids or any supplement thereto and according to the General Requirements and Covenants for Capital Construction, published by the Division of Parks _____ in ### and as supplemented in January 2003, (see Exhibit A).

6.

The contractor agrees to do the work in a first class, substantial and workmanlike manner to the reasonable satisfaction of the STATE OF COLORADO and it’s Architect/Engineer in strict accordance with the provisions of the Contract documents.

7.

The contract is not assignable without written consent of both parties.

8.

Contractor shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract.

9. Emergency Contract Modification Agreements

A.

The Principal Representative of the Division of Parks and Outdoor Recreation may direct changes in the work within the scope of the contract through the issuance of an Emergency Contract Modification Agreement (CMA) only upon the threat to life or property or the likelihood that delays in processing will result in substantial delays and/or significant cost increases. If the amount of the adjustment in contract price and/or time can be determined at the time of issuance of the Emergency CMA, those adjustments shall be reflected upon the face of the Emergency CMA. Otherwise, the Emergency CMA shall reflect a not to exceed amount for the change to the contract value. Said amount shall represent the maximum amount of adjustment to the contract price and/or time to which the contractor will be entitled, including direct and indirect costs of the changed work, as well as any direct or indirect costs attributable to delays or inefficiencies arising because of the change. For Emergency CMA’s where the price and/or time have not been determined at the time of issuance, the contractor shall submit a complete written proposal for adjustment within seven (7) days of the date of issuance.

B.

Final processing of an adjustment in price and/or time for the above process will be completed by the routing of a Standard CMA to the State Controller’s Delegate at the Department of Natural Resources which shall include a copy of the Emergency CMA and a copy of the contractors written proposal, if applicable.

C.

Emergency Contract Modification Agreements may not be used when the resulting adjustment in price exceeds twenty per cent of the current total contract value. The standard modification process is required in these instances.

10.

In the event of conflicts or inconsistencies between the contract and its exhibits or attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority:

· Colorado Special Provisions,

· Agreement; including Contract Modification Agreements,

· General Requirements and Covenants for Capital Construction (dated 1996),

· Invitation for Bids,

· Specifications and

· Contractor’s Proposal

11.

CORA Disclosure To the extent not prohibited by federal law, this Contract and the performance measures and standards under CRS §24-103.5-101, if any, are subject to public release through the Colorado Open Records Act, CRS §24-72-101, et seq.

12.

Federal Regulations -The Contractor shall comply with all applicable federal statues, regulations, policies, guidelines, OMB Circulars and other requirements, including as they relate to the application, acceptance and use of federal funds for this federally assisted Project including, but not limited to, Office of Management and Budget Circulars A-87, A-102, and A-133 and 32 CFR section 33.26.

Federal Audit -The Office of Management and Budgets (OMB) Circular No. A-133 Audits of States, Local Governments, and Non-Profit Organizations defines audit requirements under the Single Audit Act of 1996 (Public Law 104-156). All Non-Federal entities expending $500,000 or more from all sources (direct or from pass-through entities) are required to have a single audit under the circular. The OMB defines Federal financial assistance within the scope of the circular as assistance received or administered in the form of grants, cooperative agreements, loans, loan guarantees, property (including donated surplus property), interest subsidies, insurance, food commodities, direct appropriations and other assistance. The Circular also requires pass-through entities to monitor the activities of sub-recipients and ensure that sub-recipients meet the audit requirements.

Funding Availability -this contract is subject to and contingent upon the continuing availability of federal funds for the purposes hereof.

13.

STATEWIDE CONTRACT MANAGEMENT SYSTEM

If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §19 applies.

Contractor agrees to be governed, and to abide, by the provisions of CRS §24-102-205, §24-102-206, §24-103-601, §24-103.5-101 and §24-105-102 concerning the monitoring of vendor performance on state contracts and inclusion of contract performance information in a statewide contract management system.

Contractor’s performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Contract, State law, including CRS §24-103.5-101, and State Fiscal Rules, Policies and Guidance. Evaluation and Review of Contractor’s performance shall be part of the normal contract administration process and Contractor’s performance will be systematically recorded in the statewide Contract Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of Contractor’s obligations under this Contract shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of Contractor’s obligations. Such performance information shall be entered into the statewide Contract Management System at intervals established herein and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Contract term. Contractor shall be notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress.

Should the final performance Evaluation and Review determine that Contractor demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by the Department of Natural Resources, and showing of good cause, may debar Contractor and prohibit Contractor from bidding on future contracts. Contractor may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24-105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of Contractor, by the Executive Director, upon showing of good cause.

14.

PERFORMANCE MONITORING. CRS §§ 24-102-205, 24-102-206, 24-103.5-101 and 24-105-102

(a) PERFORMANCE MEASURES AND STANDARDS:

Performance measures and Standards as defined in the General Requirements & Covenants for Capital Construction shall be the basis for this Contract. This includes but is not limited to the following:

· The Contractor shall prepare a project schedule at project startup and continue to update the schedule throughout construction providing detailed justifications for construction delays and schedule changes.

· The Contractor shall submit all required product information as defined in the Construction Drawings & Specifications. In turn, the State’s Project Manager shall review and comment within 10 days of receipt.

· The State’s Project Manager and the Contractor shall conduct Construction Progress Meetings and Quantity Verification Inspections at least monthly or as otherwise determined necessary during Construction activities.

(b) ACCOUNTABILITY:

Project and Contract administration will provide accountability by documenting and evaluating the progression of construction and the ability to follow the agreed upon construction schedule. The Contractor shall report regularly on achievement of the performance measures and standards specified above and failure to do so allows the governmental body to withhold payment until successful completion of all or part of the contract and the achievement of established performance standards. Payment by the State to the Contractor shall be made without delay upon successful completion of all or any part of the contract in accordance with the payment schedule specified in the contract or as otherwise agreed upon by the parties.

(c) MONITORING REQUIREMENTS:

Both the State and the Contractor will evaluate each others' performance by preparing monthly progress reports and monthly construction schedule updates as well as performing site visits to verify quantities based on the Bid Schedule, inspections to verify quality of work, and reviews of performance data as construction progresses to ensure that the results, objectives and obligations of the contract are met.

(d) NONCOMPLIANCE RESOLUTION:

Methods and mechanisms as defined in the General Requirements & Covenants for Capital Construction shall be used to resolve any situation in which the State's monitoring assessment determines noncompliance, including termination of the contract.

15.

SPECIAL PROVISIONS

The Special Provisions apply to all contracts except where noted in italics.

1.

CONTROLLER'S APPROVAL. CRS §24-30-202(1). This contract shall not be valid until it has been approved by the Colorado State Controller or designee.

2.

FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.

3.

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, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended.

4.

INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this contract. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents.

5.

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.

6.

CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this contract, to the extent capable of execution.

7.

BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void.

8.

SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this contract, including, without limitation, immediate termination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.

9.

EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests.

10.

VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24-30-202.4 (3.5), the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action.

11.

PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. [Not Applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this contract, through participation in the E-Verify Program or the Department program established pursuant to CRS §8-17.5-102(5)(c), Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. Contractor (a) shall not use E-Verify Program or Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be liable for damages.

12.

PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this contract.

Revised 1-1-09

THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT

* Persons signing for Contractor hereby swear and affirm that they are authorized to act on Contractor’s behalf and acknowledge that the State is relying on their representations to that effect.

CONTRACTOR

Alutiiq General Contractors LLC By:

Greg Strike Title:

Vice President of Construction

*Signature

Date: _________________________

STATE OF COLORADO

John W. Hickenlooper, GOVERNOR

Department of Natural Resources Mike King, Executive Director By:______________________________________________

Signature

Title: ____________________________________________

Date: _________________________

2nd Contractor Signature if Needed By: ____________________________________

Title: ____________________________________ *Signature

Date: _________________________

LEGAL REVIEW

John W. Suthers, Attorney General By:_______________________________________________ Signature - Assistant Attorney General Date: _________________________ Pre-Approved Form Contract Reviewer

By ____________________________________

ALL CONTRACTS REQUIRE APPROVAL by the STATE CONTROLLER

CRS §24-30-202 requires the State Controller to approve all State Contracts. This Contract is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If Contractor begins performing prior thereto, the State of Colorado is not obligated to pay Contractor for such performance or for any goods and/or services provided hereunder.

STATE CONTROLLER

Robert Jaros, CPA, MBA, JD By:_________________________ Susan Borup, Controller

Department of Natural Resources Date:_____________________

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